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COSTA RICA-PANAMA ARBITRATION 



OPINION 

Concerning the Question of Boundaries 



BETWEEN 



The Republics of Costa Rica and Panama 



EXAMINED WITH RESPECT TO THE SPANISH LAW AND GIVEN AT THE 

REQUEST OF THE GOVERNMENT OF COSTA RICA BY 

THEIR EXCELLENCIES, 



DON SEGISMUNDO MORET Y PRENDERGAST 

Ex-President of the Cabinet Council, Ex-President of the Congress of Deputies, Deputy to 

the Cortes, Ex-President of the Central University, Member of the 

Permanent Court of Arbitration of the Hague, 

and 



DON VICENTE SANTAMARIA DE PAREDES 

Professor of Public Law at the Central University, Ex-Minister of Public Instruction, Senator 

of the Kingdom, President of the Council of Public Instruction, Member of the 

Royal Academies of Moral and Political Sciences and of History, 

President of the Technical Commission in the Arbitration Between the Republics of Honduras 

and Nicaragua, Decided by H. M. the King of Spain. 



WASHINGTON, D. C. 
GIBSON BROS., INCORPORATED 
1S13 
1607— I 






The documents to which parenthetical reference is 
made herein are to be found in "Documents Annexed 
to the Argument of Costa Rica Before the Arbitrator, 
Hon. Edward Douglass White," etc., in four volumes. 

P. Of B^^ 
I1AR 17 mi 



/ 5- S1^3 



INTRODUCTION. 



I. THE ARBITRATION OF THE BOUNDARY QUESTION 
PENDING BETWEEN THE REPUBLICS OF COSTA 
RICA AND PANAMA. 

On the 15th of March, 1825, the RepubHc of Colombia 
(whose rights are now claimed by that of Panama) and 
the federated Republic of Central America (of which that 
of Costa Rica formed a part) entered into a treaty by 
which, in Article 5, the parties mutually guaranteed the 
integrity of their respective territories "as they existed 
prior to the present war of independence," and, in Article 
7, they obligated themselves "to respect the boundaries 
of each other as they now exist," reserving to themselves 
the duty to make amicably and by means of a special 
agreement, the demarcation of a divisionary line as soon 
as circumstances might permit (Doc. No. 257). 

On the dissolution of that federation, the RepubUc of 
Costa Rica and that of Colombia undertook at various 
times to establish that divisionary line, preparing agree- 
ments which were never- ratified and passing through 
serious conflicts in consequence of their different concep- 
tions as to the extent of their territorial sovereignty. 

With the laudable purpose of putting an end amicably 
to their differences, they entered into an agreement on 
December 23, 1880, submitting to arbitration "the ques- 
tion of limits existing between them and the designation 
of a line that shall separate for all time and with entire 
clearness the territory of the one from the other." By 
virtue of this agreement the arbitration was entrusted to 
His Majesty, the King of Spain, at that time Don Alfonso 
XII (Doc. No. 364). 

(3) 



On the death of that Monarch, Costa Rica and Colom- 
bia, on January 20, 1886, entered into another convention, 
"additional" to that of 1880, in Article i of which the 
Government of Spain is declared to be "competent to 
proceed with the execution of the arbitration and to 
deliver a definitive sentence of an irrevocable and unap- 
pealable character" (Doc. No. 369). 

In Article 2 of this additional convention the extent of 
the disputed territory was determined, and the claims of 
the parties litigant were set forth as follows: 

"The territorial limit which the Republic of Costa 
Rica claims, on the Atlantic side, reaches as far as 
the Island of the Kscudo de Veragua and the River 
Chiriqui (Calobebora) inclusive, and, on the Pacific 
side, as far as the River Chiriqui Vie jo, inclusive, to 
the east of Punta Burica. 

"The territorial limit which the United States of 
Colombia claims reaches, on the Atlantic side, as far 
as Cape Gracias a Dios, inclusive, and, on the Pacific 
side, as far as the mouth of the Golfito River in the 
Gulf of Dulce." 

In Article 3, it is stated that the arbitral decision should 
be confined to the territory in dispute situated within these 
extreme limits, and should not affect in any way the rights 
of a third party who may not have intervened in the 
arbitration. 

New dissensions between Costa Rica and Colombia and 
their persistent desire for a friendly settlement, led to a 
third convention, signed November 4, 1896, by which the 
arbitration was offered in the first place to the President 
of the French Republic, but it was given to be understood 
that the failure to designate the Government of Spain as 
arbitrator was due solely to Colombia's reluctance to exact 



from that government so much continuous service, she 
having only shortly before then subscribed with Ecuador 
and Peru a boundary treaty in which His Catholic 
Majesty was named as arbitrator, and this after his labori- 
ous trial of the question of the Colombian- Venezuelan 
frontier (Doc. No. 403). 

In this third convention the two prior ones of 1880 and 
1886 were ratified and held to be in force, except Articles 
2 to 6 of the former, and i and 4 of the latter. So that 
there remained in force: Article i of the Convention of 
1880, stating the question of limits, and Articles 2 and 3 
relating to the boundaries claimed by each of the parties, 
and the condition that the arbitrator be confined to the 
territory in dispute. 

The arbitral proceedings having been submitted to the 
President of the French Republic, His Excellency Mon- 
sieur Loubet, who was then in charge of that very high 
office, handed down his decision on September 11, 1900 
(Doc. Nos. 413 and 414), establishing as a divisionary line 
that which he traced from Punta Mona on the Atlantic 
Ocean to Punta Burica on the Pacific Ocean. The Award 
of Monsieur Loubet sets forth none of the reasoning on 
which it is based; only the bare decision is given, prefaced 
by a list of memoranda, documents and maps presented 
by each party, and an enumeration of the Royal acts cited 
by both. 

The Government of Costa Rica made respectful obser- 
vations to that of France, in regard to the difficulties of 
carrying out the Award; and the Minister of Foreign 
Affairs, Monsieur Delcasse, in his note of November 23, 
1900 (Doc. Nos. 421 and 422), addressed to the Minister 
of Costa Rica in Paris, answered saying : 



6 

"For lack of precise geographical data, the Arbi- 
trator has not been able to fix the frontier except by- 
means of general indications; I deem, therefore, that 
it would be inconvenient to trace them upon a map 
But there is no doubt, as you have observed, that in 
conformity with the terms of Articles 2 and 3 of the 
Convention of Paris of January 20, 1886, this frontier 
line must be traced within the limits of the territory in 
dispute, as they are found to be from the text of said 
Articles. It is according to these principles that the 
Republics of Colombia and Costa Rica will have to 
proceed in the material determination of their fron- 
tiers; and the Arbitrator relies, in this particular, 
upon the spirit of conciliation and good understanding 
which has up to this time inspired the two interested 
governments." 

The Government of Costa Rica understood that the 
decision did not meet all the conditions stipulated in the 
arbitration agreement, since it did not establish the divis- 
ionary line for all time and with entire clearness; it even 
went outside the limits of the disputed territory, and left 
open the field of controversy. In its desire to settle the 
question of boundaries definitively and as soon as possible, 
that government sought and in December, 1907, obtained 
(Doc. Nos. 440 and 442) the friendly mediation of the 
United States; there was excellent reason for this choice 
inasmuch as the latter had been constituted by the Treaty 
of November 18, 1903, guarantor of the independence of 
the new Republic of Panama. 

The result of these negotiations was the Convention 
of March 17, 19 10 (Doc. No. 473), between the Repub- 
lics of Costa Rica and Panama, submitting the defini- 
tive settlement of the matter to the Chief Justice of the 
United States, in the following form: 



"The Republic of Costa Rica and the Repub- 
Hc of Panama, although they consider that the 
boundary between their respective territories desig- 
nated by the arbitral sentence of His Kxcellency, the 
President of the Republic of France, of the nth of 
September, 1900, is clear and indisputable in the 
region of the Pacific, from Punta Burica to a point 
beyond Cerro Pando in the Central Cordillera near 
the ninth degree of North Latitude, have not been 
able to reach an agreement in respect to the interpre- 
tation to be given to the Arbitral Award as to the 
rest of the boundary line; and for the purpose of 
settling their said disagreements agree to submit to 
the decision of the Honorable Chief Justice of the 
United States, who will determine in the capacity of 
Arbitrator : What is the boundary under and most in 
accordance with the correct interpretation and true 
intention of the Award of the President of the Repub- 
lic of France made the nth of September, 1900." 

The convention immediately adds: 

"In order to decide this, the Arbitrator will take 
into account all the facts, circumstances and con- 
siderations which may have a bearing upon the case, 
as well as the limitation of the lyoubet Award, ex- 
pressed in the letter of His Excellency, M. Delcasse, 
Minister of Foreign Affairs of France, to His Excel- 
lency, Sefior Peralta, Minister of Costa Rica in Paris, 
of November 23, 1900, that this boundary line must 
be drawn within the confines of the territory in 
dispute as determined by the Convention of Paris 
between the Republic of Costa Rica and the Republic 
of Colombia of January 20, 1886." 

11. OBJECT AND PLAN OF THIS OPINION. 

This matter being under submission before the Hon- 
orable Chief Justice of the United States, the Government 
of Costa Rica has been pleased to engage the undersigned 



8 

counsel to examine all the antedecents of the case, the 
allegations of the Parties litigant, and the laws and Royal 
acts invoked, and to give an opinion in regard to the 
boundary question between the Republics of Costa Rica and 
Panama, as affected by the Spanish colonial law. 

In order to fulfill the duty with which it has honored us, 
we have carefully examined all the data relating to the 
question, and after mature reflection, have prepared the 
present opinion. 

We will not go beyond the sphere of Spanish colonial 
law, as to which we are consulted, and we wish to state 
that we adopt this denomination, not because it has 
been used in Spain— who called her territories of the 
Indies kingdoms and provinces, instead of colonies — 
but for greater clearness and in contradistinction to 
international law, into which we shall not intrude. 

What may be the efficacy of the decision of Monsieur 
Loubet under international law, and what the value of 
the intercolonial boundaries in fixing the international 
lines between two adjoining provinces dependent upon 
the same mother country and now converted into sov- 
ereign States, are questions foreign to our examination. 

But we do contend that to determine the question of 
the boundaries between Costa Rica and Panama accord- 
ing to Spanish colonial law is equivalent to deciding it 
under international law, because that law has been funda- 
mentally the basis of the boundary settlements of the 
Spanish- American republics, because the entire discussion 
in the present litigation turns upon that law solely, and 
because the "true intent of the Award" of Monsieur 
Loubet was to sustain that system of laws. 

Although, as we have indicated, this Award contains 
no reasoning whatever^ it clearly appears that the Arbi- 



9 

trator did not have any other intention, since it refers only 
to the laws, Royal cedulas and Royal orders of the colonial 
epoch which it cites in detail in the preamble, save the 
Treaty of 1825, between the RepubUcs of Central America 
and Colombia, which recognized as boundaries those then 
existing; that is to say, the intercolonial boundaries. 

And since, according to the Convention of 19 10, the 
Chief Justice must take into account all the facts, cir- 
cumstances and considerations of the case, and since the 
case involves the legality of the demarcations of Costa 
Rica and Panama according to Spanish colonial law, we 
will have to set forth all those facts, circumstances and 
considerations arising during the period of the sover- 
reignty of Spain, inasmuch as they contribute to clear up 
the matter. 

The question of boundaries being placed, therefore, 
in the field of Spanish colonial law, we divide this opinion 
into three parts, comprising the three propositions following : 

1. The Province of Costa Rica and the Province of 
Veragua were definitively established and marked out by 
the Crown in the XVI th century (1573). 

2. The Recopilacion de Indias (Compilation of the I^aws 
of the Indies) respected and confirmed the existence and 
demarcation of Costa Rica. 

3. Costa Rica continued in the same legal status of 
differentiation from Veragua, from the publication of the 
Recopilacion down to the independence. 

Under these three heads we shall group the different 
controverted questions, developing our opinion thereon 
as we proceed. 



FIRST PART. 



THE PROVINCES OF COSTA RICA AND 
VERAQUA WERE DEFINITIVELY ESTAB= 
LISHED AND BOUNDED BY THE CROWN 
IN THE XVIth CENTURY (1573). 



I. NECESSITY FOR STUDYING THE FORMATION OF 
THE PROVINCES OF VERAQUA AND COSTA RICA. 

(i) The "Veragua" Equivoque as the Premise 

OE THE PrINCIPAIv ARGUMENT OE Coi^OMBIA. 

(2) The History of the Formation oe the Prov- 
inces OF Veragua and Costa Rica Ci^ears 
Up the Equivoque and Ci^early Demon- 
strates How They Were Recognized and 
Differentiated in the XVIth Century. 

II. THE PRIMITIVE VERAQUA (1502 TO 1537). 

(i) The Veragua of Christopher Columbus (1502) 

(2) The Veragua of Nicuesa (1508). 

(3) The Veragua Bordering on the Castii^i^a deiv 

Oro op Pedrarias Davii^a (1513 TO 1527). 

(4) The Veragua of FeupE Gutierrez (1534). 

III. PROVINCE OF VERAQUA. 

(i) Creation of the Dukedom of Veragua; 

ROYAE C^DUIvAS OF 1 537- 

(2) Limits of this Dukedom. 

(3) Suppression OF THE Ducal Seignory (1556). 

(4) Organization of the Province of Veragua 

with a Governor Captain-General. 

(11) 



12 

IV. PROVINCE OF COSTA RICA. 

(i) Royal Veragua; Province of Costa Rica; 
Government of Sanchez de Badajoz (1539). 

(2) Province of Cartago; Government of Diego 

Gutierrez (1540). 

(3) Province of New Cartago or Costa Rica, 

FROM THE Birth of the Province of Veragua 
(1560): 

(a) Differentiation of the two Veraguas, after the 

suppression of the Ducal Seignory; 

(b) Ortiz de Elgueta {1559); 

(c) Juan de Cavallon {ij6o); 

(d) Denial of the Request of the Governor of Tierra 

Firme, Figuerola {1561); 

(e) Vazquez de Coronado {1562); 

(f) Perafdn de Rihera {1566); 

(4) The Province of Costa Rica Definitively 

Organized; Government of Artieda (1573); 

(a) Royal Cedula of Philip II, of December i, 1573; 

(b) Formation of the Province of Teguzgalpa by its 

Segregation from the Province of Costa Rica, 
prior to 1573; 

(c) Boundaries with the Province of Veragua; 

V. THE QUESTION OF BOUNDARIES SETTLED BY 
THE ROYAL CEDULA OF 1573 AND NOT BY THAT OF 
1537. 

(i) Importance, Confirmations and Subsistence 
OF the Royal Cedula of 1573. 

(2) Inefficacy and Abrogation of the Royal 
Ce;dula of 1537. 



I. 

NECESSITY FOR STUDYING THE FORMATION OF 
THE PROVINCES OF VERAGUA AND COSTA RICA. 

(i) The " Veragua " Equivoque as the premise oi? thk 

PRINCIPAI, argument OF CoivOMBIA. 

The question of boundaries pending between the Re- 
pubhcs of Costa Rica and of Panama (the successor to 
that of Colombia) refers to the territory which was called 
" Veragua;" out of this was formed the Province of Costa 
Rica, which is now the Republic of that name, and the 
Province of Veragua, which belonged to the Republic of 
Colombia and now belongs to Panama. 

Placing this question of boundaries within the sphere 
of Spanish colonial law, we find that it was settled in the 
XVIth century by the formation of these two provinces, 
and more specifically by the Royal cedula of December i , 
1573 (Doc. No. 62), which established forever the differen- 
tiation between them. And if it is always useful to know 
how any political entities which litigate their geographical 
boundaries were formed, it becomes indispensable in the 
present case, inasmuch as Colombia has enlarged her 
claims to the extent of denying the very existence of Costa 
Rica as a Spanish province, and has asked as her limits 
those with which Costa Rica ends on the side opposite to 
the Colombian borders, in order clearly to get from the 
Arbitrator the greatest extension possible, although it 
could not be expected that the arbitration would result 
in the suppression of the adverse international personality. 

The ancient Veragua passed through various phases in 
its historico-legal evolution, until its name became con- 
creted into one of the three provinces that arose out of it; 

(13) 



14 

Colombia makes use of the "equivoque" to which the 
variety of the applications of the name gives rise, and 
founds thereon her argument. 

All of Colombia's counsel employ, as their principal 
argument, the one which may be formulated in the follow- 
ing syllogism: Law 9, title i, book V, of the Recopilacion 
de Indias (Doc. No. 135), with reference to the Royal 
cedula of Carlos V of March 2, 1537 (Doc. No. 13), says 
that "the whole Province of Veragua belongs to the 
Government of Tierra Firme;" therefore it is that since 
to Colombia belongs that which was under the Govern- 
ment of Tierra Firme, it follows that all of the Province 
of Veragua belongs to her. And as the Veragua of 1537 
comprised all of the territory included between Castilla 
del Oro and Cape Gracias a Dios, and as within that terri- 
tory was included that which Costa Rica now holds, the 
latter should have it, as also that which extends from the 
Desaguadero, or River San Juan (the boundary of Costa 
Rica with Nicaragua) as far as Cape Gracias a Dios. 

Don Francisco Silvela, who signed the first ' ' Memoran- 
dum of Colombia," asserts that according to the Royal 
cedula of March 2, 1537, Veragua comprised from Castilla 
del Oro as far as Cape Gracias a Dios, but as the litigation 
was only with Costa Rica — which went no farther than 
the river San Juan — that river should be the northern 
limit on the Atlantic (p. 61). 

Monsieur Poincare says the same in the second and 
third "Memorandum of Colombia," declaring in the latter, 
in capital letters, ''let the whole Province of Veragua belong 
to the Government of Tierra Firme f' this being the decisive 
phrase, which solemnly expresses, in his judgment, the 
thought of the Spanish Monarch (p. 2). In the "Sum- 
mary {resume) of the Conclusions of Colombia," also pre- 



15 

sented to the Arbitrator by Monsieur Poincare, he con- 
denses the argument as follows: 

"The whole of the Province of Veragua depended 
from the Audiencia of Panama and this Audiencia 
was swallowed up in the Viceroy alty of Santa Fe. 
Colombia is unquestionably the successor to the right 
of the Government of Tierra Firme, of the Audiencia 
of Panama and the Viceroyalty of Santa Fe. All of 
the Province of Veragua ought, therefore, to belong 
to Colombia. Since its origin the Province of Veragua 
has extended as far as Cape Gracias a Dios. (See the 
Royal cedula of March 2, 1537). It has never been 
divided." 

(2) The history of the formation of the Provinces of 
Veragua and Costa Rica ci^ears up the equi- 
voque AND CLEARIvY demonstrates HOW THEY 
WERE RECOGNIZED AND DIFFERENTIATED IN THE 

XVlTH Century. 

History clears up the equivoque upon which Colombia 
bases her argument, for it shows the different significations 
which the denomination "Veragua" had until it came 
to be applied solely to one determinate province. 

This investigation of the formation of the Provinces of 
Veragua and Costa Rica has, besides its historical interest, 
the immense importance of clearly demonstrating how the 
question, which is now being tried between Costa Rica 
and Panama, was settled in the XVIth century by the 
Spanish colonial law — not by virtue of the Royal cedula 
of 1537, but of the Royal cedulas of December i, 1573 
(Doc. No. 62), and February 18, 1574 (Doc. No. 63). 

We think that Colombia's counsel, by taking as a point 
of departure the Recopilacion de Indias, have obscured the 
controversy ; they have mixed legal considerations deduced 
1607—2 



16 

from its text with historical assertions difficult of compre- 
hension in connection with those texts, without previously 
taking up the history of the formation of those provinces, 
as was done by counsel for Costa Rica in his first memo- 
randum. It seems to us better to explain and discuss 
first the acts and legal dispositions that preceded the 
Recopilacion, and then, afterwards, to examine the Recopi- 
lacion, and, taking its laws altogether, apply them to the 
facts and prior dispositions which are already known, with- 
out having to interrupt the doctrinal demonstration with 
historical digressions appropriate to the preceding epoch. 

For greater clearness, also, we divide the historico-legal 
examination of the epoch prior to the Recopilacion into 
three sections, which cover respectively: (i) that which we 
call primitive Veragua, that is, from the discovery by 
Columbus, in 1502, down to its division into Ducal 
Veragua and Royal Veragua, in 1537; (2) the Province of 
Veragua, and (3) the Province of Costa Rica. Within each 
section we follow the chronological method, which, thus 
combined with the geographical division, obviates the 
confusion that results when, by observing the former 
exclusively and keeping the order of the dates, different 
facts relat'ng to distinct provinces, are mingled. From 
all this examination we shall deduce, at last, that the 
question of boundaries was settled by the Royal cedula 
of 1573, and not by that of 1537. 



THE PRIMITIVE VERAQUA (1502 TO 1537). 

(i) The Vbragua of Christopher Columbus (1502). 

For many years the territories of Central America lying 
along the coast of the Atlantic, from Cape Honduras as 
far as the port of Retrete (now the port of Escribanos), 
near Cape San Bias, and which Christopher Columbus 
discovered in his fourth and last voyage of 1502, were 
known by the name of " Veragua." 

Strictly speaking this name belonged only to a hamlet 
and a small surrounding territory. Columbus relates, in 
his letter from Jamaica, of July 7, 1503, to the CathoUc 
Sovereigns (Doc. No. i), in which he gives an account of 
this voyage, that two Indians took him to Carambaru 
(Zorobaro), where the people went naked, with but a 
mirror of gold at the neck, telling him of many places on 
the coast in which gold was to be found; "the farthest," 
he said, "was Veragua, distant from there about 25 
leagues." And in describing in detail the same voyage, 
Diego de Porras explains how Columbus, entering by the 
river he called Belen, "in the territory of Veragua," proved 
the existence of the mines. So Columbus understood that 
Veragua was situated 25 leagues to the east of Zorobaro 
and extended to the River Belen. 

The great fame acquired by this territory of Veragua — 
in which Columbus stated that in the first two days he 
had seen greater signs of gold than in Bspaiiola (the Island 
of Hispaniola, or Hayti) during four years — caused its 
discovery to be considered as the most important of that 
fourth voyage, and the name "Veragua" was applied to 
all that was discovered there, from Cape Honduras as far 
as the Cape of San Bias. 

(17) 



18 

(2) The Veragua of Nicuesa (1508). 

When Columbus returned to Spain he claimed from the 
Catholic Sovereigns the fulfillment of the promises made 
to him, especially as to the seignory of the territory of 
Veragua, which was the one that he held in the greatest 
esteem. But he did not have the support of Queen 
Isabella, who had died, and the Catholic King did not 
admit his claims, considering them excessive and dangerous 
to the Royal sovereignty. The Admiral having died with- 
out succeeding in his desires, Don Diego Columbus, his 
son and heir, instituted a suit, in 1508, against the Crown, 
which was in great part settled by the creation of the 
Dukedom of Veragua in 1536. 

By the Royal cedula of Dona Juana, of June 9, 1508 
(Doc. No. 2), the Government of Veragua was granted 
to Diego de Nicuesa; therein he was given besides the 
military command, "full power and jurisdiction, civil and 
criminal," although restricted by the right of appeal to 
the Governor of the Island of Kspaiiola. In this Royal 
cedula the extremity of Veragua was clearly fixed on the 
side of Tierra Firme, in the Gulf of Uraba, and it was 
provided further that the part of Uraba is that granted to 
Alonso de Ojeda; but there is no indication where the 
Government of Veragua which was granted to Nicuesa^ 
terminated on the west and north. 

Fray Bartolome de las Casas and other historians of 
the Indies (like Herrera and Navarre te) say that the 
Veragua of Nicuesa extended from the Gulf of Uraba as 
far as Cape Gracias a Dios. Fernandez de Oviedo asserts 
that it was from the same Gulf of Uraba "as far as the 
end of the territory called Veragua." Sefior Peralta 
observes very properly, that the only data which the 



19 

Catholic King had before him on which to base the grant 
of the Government of Veragua, were the courses and 
indications of Columbus, and if these be ignored, there is 
just as much reason to conjecture that it extended to Cape 
Gracias a Dios as that it extended to Cape Honduras, or 
any other point in the voyage of the Great Discoverer. 
This strenghthens the extension that was given to the 
name of Veragua. 

Nicuesa did not succeed in founding anything in the 
territory which was allotted to him; he stayed only in 
the Veragua of the Belen River and in the Island of 
the Escudo of Veragua (or Nicuesa), and there endured 
many misfortunes, disappearing in 151 1 in a shipwreck. 

Vasco Nunez de Balboa, who had founded the colony 
of Santa Maria del Darien, within the jurisdiction of 
Nicuesa on the western coast of the Gulf of Uraba, in 
a letter of January 20, 1513 (Doc. No. 3), giving an 
account to the King of the progress of that colony, asked 
that he might be allowed to bring back some Indians 
"0/ the part of Veragua from a gulf called San Bias, which 
lies at a distance of 50 leagues from this town down the 
coast." So that according to Nuiiez de Balboa, Veragua 
did not terminate on its eastern side at the Belen River, 
but included also the territories of the Gulf of San Bias. 

Vasco Nufiez de Balboa discovered the South Sea 
(Pacific) on September 25, 15 13. 

(3) The Veragua Bordering on the Castii^IvA deiv 
Oro of Pedrarias Da VILA (1513 to 1527). 

By the Royal cedula of July 27, 1913 (Doc. No. 4), 
Pedrarias Davila was appointed Captain-General and 
Governor of the Province of Castilla del Oro (the first 
time that this denomination was applied to Tierra Firme) 



20 

"so long as it does not include nor have embraced within 
it the Province of Veragua, the administration of which 
belongs to the Admiral Don Diego Columbus, because the 
Admiral, his father, discovered it in person." The Prov- 
ince of Castilla del Oro was, therefore, differentiated from 
the "Province of Veragua," which was thus denominated 
before the creation of the dukedom of the same name ; but 
the boundaries between the two were not fixed. 

Gonzalo Fernandez de Oviedo, the official historian of 
the Indies, who intervened in the conquest of Tierra Firme 
and Nicaragua, says that ' ' Castilla del Oro on the North 
Coast reaches as far as Veragua, with which the Punta de 
Chame corresponds more or less on the South Coast, 
fifteen leagues to the West from Panama." 

This limit agrees with that of the jurisdiction of the city 
of Panama, fixed by the Royal cedula of 152 1 (Doc. No. 5), 
wherein it is stated that it reaches "as far as the Province 
of Chiru," which is situated a short distance from the 
Punta de Chame. 

According to this, the Province of Veragua, bordering 
on Castilla del Oro, did not terminate on the east at the 
Belen River, but extended as far as the said Punta de 
Chame. 

Pedrarias Davila governed Castilla del Oro until 1527, 
when he left to become Governor of Nicaragua. 

(4) The Veragua of Feupe Gutierrez (1534). 

Whilst the suit instituted by Don Diego Columbus 
was still pending, but with the declaration made in his 
favor by the Crown respecting Veragua (excluding it 
from the Government of Castilla del Oro), the widow, 
Dona Maria de Toledo, as guardian of his children and 



21 

Vicereine of the Indies, determined to grant the Gov- 
ernment of Veragua to FeHpe Gutierrez, and applied 
to the Council of the Indies for the issuance to him 
of the requisite Royal decrees. But in accord with 
the Council, the King Don Carlos preferred to grant 
the concession directly to Felipe Gutierrez; this he did 
by the capitulacion approved by the Royal cedula of 
December 24, 1534 (Doc. No. 8), and at the same time, 
by another Royal cedula, of the same date (Doc. No. 
6), he declared that this "is understood to be without 
prejudice to any right that the said Admiral Don Luis 
Columbus claims to have to the said government by 
virtue of his privileges." In the Royal cedula of February 
6, 1535 (Doc. No. 9), the title of Governor of Veragua 
was conferred upon Felipe Gutierrez with all that per- 
tained thereto. 

Both in the Royal cedula of capitulacion, as well as 
in the title the text reads : 

' ' The Province of Veragua, which is on the coast 
of Tierra Firme of our Indies of the Ocean Sea, 
whence terminate the boundaries of the Government 
of Castilla del Oro, called Tierra Firme, and which 
were designated to Pedrarias Davila and Pedro de 
los Rios, who were our Governors of the said province 
under the Provisiones which were given to them, as 
far as the Cape Gracias a Dios." 

Felipe Gutierrez, as Governor of Veragua, having 
presented a complaint against the Governor of Tierra 
Firme, because the latter had invaded his territory, 
the Royal cedula of July 14, 1536 (Doc. No. 10), was 
issued, directing the latter not to enter within the limits 
of the Province of Urraca, as it fell within that of Veragua. 
The territories of Urraca were contiguous to Nata and 



22 

occupied the heights which divided the waters of the north 
and the south; so that by this Royal cedula the eastern 
boundaries of the Province of Veragua were concretely 
defined. 

Almost at the same time Felipe Gutierrez abandoned 
his charge and set out for Peru, having failed in his under- 
taking and being unable to support so many misfortunes. 



III. 

PROVINCE OF VERAQUA. 

(i) Creation of the: Dukedom op Veragua; Royai, 
Ci^DULAS OE 1537. 

The long suit based upon the claims of Christopher 
Columbus, which his son Don Diego began in 1508 and 
which was continued by the widow of the latter, Dona 
Maria de Toledo — for herself and in the name of her first 
born, Don Luis, and other children — was decided by the 
arbitral decision of July 7, 1536^ This decision was 
delivered by the Cardinal Fray Garcia de Loaysa, Bishop 
of Sigiienza, Confessor of the Emperor and President of 
the Council of the Indies, who was appointed arbitrator 
by mutual agreement between the Vicereine and the 
Crown. 

Carlos V, in his Royal cedula of January 19, 1537 
(Doc. No. 12), states how both parties entrusted the 
settlement to the Cardinal in order that he might "de- 
termine and arbitrate therein as he shall deem best, 
taking from one party and giving to the other, accordingly 
as may appear to him proper;" he confirms the Cardinal's 
decision and in pursuance thereof creates the Dukedom 
of Veragua in favor of Don Luis Columbus and his suc- 
cessors, making a grant to him and to his house and estate 
of ' ' twenty-five leagues of land in a square in the Province 
of Veragua, which is in in Tierra Firme, with its civil and 
criminal jurisdiction, high and low, simple, mixed imperial, 
leaving the supreme to His Majesty." 

^Document published by Fernandez Duro Colon y Pinzon. 

(23) 



24 

The creation of the Dukedom of Veragua, which segre- 
gated a square of twenty-five leagues on each side of the 
territory known under the name of Veragua, and the gov- 
ernment of which had been granted to Fehpe Gutierrez, 
compelled provision to be made in regard to the legal and 
the governmental situation in which that territory was 
left, especially since, at the end of 1536, the desertion of 
that governor had become known in Spain. This led to 
the Royal cedula of March 2, 1537 (Doc. No. 13), in which 
the Emperor revoked the capitulacion and government of 
Felipe Gutierrez, reproduced the disposition concerning 
the creation of the dukedom and directed that the terri- 
tories left in the said Province of Veragua, after taking 
out the twenty-five leagues given to Don lyuis Columbus, 
be understood to belong to the Government of the Province 
of Tierra Firme, called Castilla del Oro, "during our will 
and pleasure." 

By virtue of this Royal cedula, upon which counsel 
for Colombia mainly rely in defense of her rights, the 
territory of the ancient Veragua granted to Felipe Guti- 
errez was divided into two parts, which, in order to dis- 
tinguish them, are designated in the present controversy 
Ducal Veragua and Royal Veragua, referring respectively 
to that which constituted the Dukedom of Veragua and 
to that which was reserved by the Crown for its free 
disposal. 

(2) Limits of this Dukedom. 

In this Royal cedula of March 2, 1537, as well as in 
the earlier one of January 19, the boundaries of the 
Dukedom of Veragua were fixed in the following manner : 

"* * * a square of land twenty-five leagues, 
in the said Province of Veragua * * * and they 



25 

begin from the River Belen, inclusive, counting by a 
parallel, as far as the western part of the Bay of 
Zorobaro; and all the leagues that may be lacking for 
the said twenty-five leagues, shall be counted forward 
from the said bay by the said parallel; and where 
these twenty-five leagues terminate, another twenty- 
five shall begin by a North-South meridian; and 
as many others begin from the said River Belen 
by the said meridian of the said river, North-South; 
and where these said twenty-five leagues shall end, 
there shall begin another twenty-five leagues, which 
shall continue, counting by a parallel, until they end 
where the twenty-five leagues terminate that are 
counted proceeding forward from the Bay of Zoro- 
baro; which territory we have commanded to be 
called the Bay of Zorobaro, and with it we direct to 
be given him the title of Duke * * *." 

As may be seen, the demarcation is mathematical; the 
grant forms a perfect quadrangle, which has one side 
definitely determined by the meridian corresponding to 
the Belen River, included therein. It should be noted 
that Zorobaro and the Belen River were for Christopher 
Columbus the indicatory points of the Veragua discovered 
and coveted by him under this name ; and it appears that 
between the meridian of the Belen River and the Province 
of Castilla del Oro, which the prior demarcations refer to 
as bordering on the Province of Veragua, there were lands 
which were not included in the Dukedom of Veragua. 

These facts must be taken into consideration when the 
time comes to interpret the Recopilacion de Indias in its 
relation to the Royal cedula of March 2, 1537; and with- 
out concerning ourselves now with the territory of the 
Royal Veragua left on either side of the twenty-five leagues 
of the dukedom, let us see how the latter was converted 
into the Province of Veragua properly so-called. 



26 



(3) Suppression of the DucaIv Seignory (1556). 

Don Luis Columbus was not fortunate in the conquest 
and government of the dukedom which was exercised and 
carried on by governors and captains appointed by him, 
and after the disaster in which his brother Francisco 
perished and the failure of Rebolledo, he made a cession 
to the Crown of the territories and seignory of the Duke- 
dom of Veragua, in consideration of an annual pension 
of seven thousand ducats, but the title he retained, as he 
stipulated with the Council of the Indies in writing on 
July 4, 1556, which stipulation the King approved and 
directed to be carried out by the Royal cedula of December 
2 of the same year (Doc. No. 31). 

The territory of the suppressed dukedom was left added 
to the Government of the Province of Tierra Firme, called 
Castilla del Oro, it not being true that it was placed under 
the jurisdiction of the city of Natd, as counsel for Colombia 
assert. The fact is that, by the Royal cedula of January 
21, 1557 (Doc. No. 32), the Governor of Tierra Firme was 
authorized to permit the inhabitants of Nata to settle the 
territory of the dukedom as they had asked permission 
to do. 

The inhabitants of Nata organized an expedition under 
the command of Francisco Vazquez, who was commis- 
sioned by the Governor of Tierra Firme, and who, in 
May, 1558, entered the territory of Urraca, founded some 
settlements and discovered some mines. 

The Governor of Tierra Firme, Monjaraz, learning of 
this, wanted to make the conquest himself, and set out 
for Nata; but Vazquez hastened to make a complaint to 
the Audiencia of Peru (Doc. No. 2>?>)^ and with his men 
resisted the entry of Monjaraz, defeating him on the banks 







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27 

of the Gahi River, the boundary of the Dukedom of 
Veragua on the side of Nata. 

(4) Organization of the Province of Veragua with 
A Governor Captain-General. (1560). 

In view of the complaint instituted by Francisco 
Vazquez, the Audiencia of Peru, by Royal provision of 
May 20, 1559 (Doc. No. 33), appointed Bernardino de 
Roman to take up the matter and arrange its settlement. 
Bernardino de Roman was informed of all that had 
happened and then made a long report to the King, giving 
an opinion very favorable to Vazquez.^ 

Philip II put an end to the question by the Royal cedula 
of August 20, 1560 (Doc. No. 40), instituting the Province 
of Veragua with a Governor Captain-General and appoint- 
ing for this post Francisco Vazquez, to whom he granted 
all the attributes necessary for the good government and 
administration of justice in that province. 

The boundaries of the new government were not fixed ; 
but there can be no doubt that it had for its territory that 
of the suppressed dukedom, according to the antecedents 
of this Royal cedula and to the language used therein 
respecting the origin of the question decided. Francisco 
Vazquez, in his petition to the Audiencia of Peru, appears, 
represented by attorney, as a resident of the city of Nata 
and relying on the rights established by the Royal cedula 
of January, 1557, which, he says, "commands the Gov- 
ernor of the Province of Tierra Firme to appoint a person 
who should settle and conquer the Province of Veragua, 
that was the Dukedom ojf the Admiral Don I^uis Columbus, 

%e6n Fernandez, Coleccion de Docmnentos para la Historia de 
Costa Rica, Vol. V, p. 153. 



28 

but which His Majesty had placed again under the Royal 
Crown * * *." The Royal cedula of 1560, appointing 
him governor, began by stating that he made an agree- 
ment and capitulacion with the Governor of Tierra Firme 
in order to settle the Province of Veragua, as the latter had 
been authorized. 

Francisco Vazquez, then, was the first of the governors 
who ruled the Province of Veragua, which continued under 
that kind of authority during the whole of the Colonial 
epoch. 



IV. 

PROVINCE OF COSTA RICA. 

(i) RoYAiv Vkragua; Province op Costa Rica; Gov- 
ernment oif Sanchez de Badajoz (1539). 

As we have said, by Royal cedula of March 2, 1537, 
the Veragua the government of which was granted to 
Fehpe Gutierrez, was left split up into two parts; the 
dukedom, that is to say, the square of twenty-five leagues 
given to Don Luis Columbus; and the rest of that terri- 
tory, herein called for greater clearness Royal Veragua, in 
contradistinction to Ducal Veragua. 

The said Royal cedula, from which Colombia derives 
all her rights, simply says in respect of Royal Veragua, 
that it was left in the Government of Tierra Firme 
(Castilla del Oro) during the Monarch's pleasure; and the 
Monarch repeatedly disposed of it, repealing, therefore, 
the Royal cedula referred to. 

In the first place the jurisdiction over Royal Veragua 
passed from the Government of Tierra Firme to the 
Audiencia of Panama, which replaced the former in 1538. 

Because of the fact that Royal Veragua depended upon 
the Government of this Audiencia, its Judge, Dr. Robles, 
thought that he was authorized to make a capitulacion 
giving it to his son-in-law, Hernan Sanchez de Badajoz, 
who already, through the Vicereine, had the Government 
of the dukedom under his charge, and because "the one 
did not go without the other." It was so stated by him 
in his letter to the Council of the Indies of the 19th of 
July, 1539 (Doc. No. 15). 

But Rodrigo de Contreras, Governor of Nicaragua, had 
commissioned two captains to undertake the exploration 

(29) 



30 

of the Desaguadero, or River San Juan, and, as the latter 
disembogued on the Veragua coast which had been granted 
to Sanchez de Badajoz, the Audiencia of Panama informed 
that governor of the undertaking by Royal provisiones of 
December 17, 1539 (Doc. No. 16); in this he was told 
that the grant to Sanchez de Badajoz comprised the right 
of conquest and Captaincy-General of the Province of 
Costa Rica, "which extends from the borders of the Duke- 
dom of Veragua and Zorobaro as far as Guaymura (Cape 
Camaron) and from Sea to Sea." This is the first time 
that the name of CosTA Rica appears officially, and as 
equivalent to the wider acceptation of Veragua, that is to 
say, to the coast discovered by Columbus during his last 
voyage (as far as the dukedom) with the addition of the 
extension "from Sea to Sea." 

The King, in accord with the Council of the Indies, by 
Royal cedulas communicated to Sanchez de Badajoz, and 
to the Audiencia, on April 24, 1540 (Doc. No. 17), declared 
void the concessions which the latter made of "the lands 
which are left to us in the Province of Veragua * * *, 
because this is a matter that must be treated solely by 
our Royal Person and in our Council of the Indies." 

(2) Province of Cart ago; Government of Diego 
Gutierrez (1540). 

At the sohcitation of Diego Gutierrez, brother of Felipe, 
and in accord with the views of the Council of the Indies, 
the Crown authorized him to undertake the conquest 
and settlement of Royal Veragua, and issued the Royal 
cedula of November 29, 1540 (Doc. No. 18), which ap- 
proved the capitulacion, and conferred upon him by Royal 
cedula of December 16 of the same year (Doc. No. 19), 







































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31 

the title of Governor of that province, which was then 
designated by the name of Cartago. 

As appears from these documents, the government 
granted to Diego Gutierrez under this denomination of 
Cartago, is the same as that which the Audiencia of Panama 
improperly granted, under the name of Costa Rica, to 
Sanchez de Badajoz, but with greater precision as to 
boundaries. 

The line of the dukedom is fixed as a basis by the 
meridian corresponding to the termination of the twenty- 
five leagues which were to end toward the Bay of Zoroharo; 
the province stretches in length along the coast as far as 
the River Grande, to the west of Cape Camaron ; its width 
is fixed as from "sea to sea" up to Nicaragua and then 
limited by this province to fifteen leagues from its Lake 
Nicaragua and by that of Honduras as far as the River 
Grande. 

This demarcation established by the Royal cedulas of 
1540, was confirmed by that of January 11, 1541 (Doc. 
No. 20), in which all the governors of the provinces were 
commanded to respect the boundaries of the Province of 
Cartago; by the sentence of the Council of the Indies, 
of April 9, 1 541 (Doc. No. 232), in the suit instituted in 
regard to the Desaguadero, and by the Royal cedula of 
May 9, 1545 (Doc. No. 29), adding the Province of Cartago 
to the Bishopric of Nicaragua. All of these go to show 
that the vague reference to the Royal Veragua, made in 
the Royal cedula of 1537, had no importance and even no 
legal force after the recognition and delimitation of the 
Province of Cartago. 

Diego Gutierrez died in a fight with the Indians, and 
the Crown, in conformity with the designation made 
by his son in favor of Juan Perez de Cabrera, conferred 



32 

upon the latter the title of Governor of Cartago, on 
February 22, 1549 (Doc. No. 30). The Council of the 
Indies having decided that the conquest of this province 
be postponed, Cabrera was transferred to the Government 
of Honduras (1552). 

(3) Province of Cartago, or New Cartago or Costa 
Rica, From the Birth of the Province of 
Veragua (1560). 

(a) Differentiation of the two Veragiias, after the suppres- 
sion of the Ducal Seignory. 

It may be thought that by the retrocession of the 
Dukedom of Veragua to the Crown, in 1556, the differ- 
ence between the Dukedom of Veragua and the Royal 
Veragua disappeared, and that they returned to form the 
Province of Veragua as it existed before the creation of 
that dukedom by Royal cedula of March 2, 1537. But 
such was not the case, for each continued with an inde- 
pendent life, with governments of distinct origin and con- 
stituted as distinct provinces under different names. 

We have already seen how the conquest and settlement 
of the suppressed dukedom was made, from Tierra Firme, 
by Francisco Vazquez, under whose command, as Governor 
and Captain-General, the Province of Veragua was organ- 
ized in 1560 — since then the only province of that name. 

In order that the ambiguity of the denomination of 
Veragua might disappear and not be confused with that 
of the dukedom, the Audiencia of Panama called the 
Royal Veragua which was improperly granted to vSanchez 
de Badajoz, Costa Rica, and Carlos V called that same 
Veragua which he granted to Diego Gutierrez, Cartago, 
perhaps also by not admitting even the name of that 
grant which he had revoked. 



33 

The historian, Fernandez de Oviedo, says that Diego 
Gutierrez ordered that his Government be called Car- 
tago and Costa Rica, under penalty of a hundred lashes 
to whoever should dare to call it Veragua. In the period 
that intervened between his government and the year 
1573, it was designated indiscriminately by the names of 
Cartago, New Cartago and Costa Rica, and with each 
change the latter name came more frequently to be used. 
Costa Rica is, then, the province that was definitively con- 
stituted in 1573 by the separation of the portion north of 
the Desaguadero, which was to be called the Province of 
Teguzgalpa to differentiate it from that of Veragua; for 
the latter was reserved the name of Veragua, which has led 
to so much confusion. 

Whilst the formative current of the Province of Veragua 
came from the side of Tierra Firme, that of the Province 
of Costa Rica proceeded from Nicaragua and Guatemala, 
that is to say, from the opposite side. 

(b) Ortiz de Elgueta {ijjg). 

The King, Don Philip II, by an unquestionable act 
of sovereignty and without the intervention of any capi- 
tulacion whatever, entrusted the settlement and govern- 
ment of Royal Veragua to the Licentiate Alonso Ortiz de 
Elgueta, as Alcalde mayor of the Province of Nicaragua, 
by Royal cedula, dated at Toledo, December 13, 1559 
(Doc. No. 34), which begins thus: 

"We are informed that between that Province of 
Nicaragua and that of Honduras and the Desaguadero 
of Nicaragua, on the side of {a la parte de) the cities of 
Nombre de Dios and Panama, between the South Sea 
and that of the North, there are many Indians without 
light or knowledge of the faith, but who have shown 



34 

great evidences of yielding obedience and receiving 
the Christian doctrine ; and since we much desire that 
this country may be settled and properly governed, as 
well as the natives thereof enlightened and taught in 
our Holy Catholic Faith, and also that the vSpaniards 
who go that way be benefited and established and 
may have a fixed location and livelihood * * * 
we directed it to be discussed in our Council of 
the Indies * * * and so we command you that 
you undertake the same * * * and in the said 
settlement and exploration you will observe, and will 
cause to be observed, the directions in this instruction 
contained, which are as follows:" (Then follow the 
directions.) 

By Royal cedula of February 23, 1560 (Doc. No. 37), 
this resolution was communicated to the Audiencia of 
the Confines (Guatemala), directing it to give to the 
Licentiate Ortiz "every encouragement and aid;" and 
by another of the same date (Doc. No. 38) the commis- 
sion conferred upon the latter was reiterated, with new 
instructions; in the latter he was authorized, as he was 
in the former, to give lands to the settlers and to exempt 
them from imposts, so that one could almost say that it 
had the character of a carta de pohlacion (Royal charter), 
like those which were given at the period of the Spanish 
reconquest. 

In both of these Royal cedulas the territory allotted 
to the Alcalde mayor of Nicaragua is described in the 
same words which we have underlined in that of December 
13, from which it may be instantly inferred that this 
territory was the same that was granted to Sanchez de 
Badajoz under the name of Costa Rica, and to Diego 
Gutierrez under that of Cartago, though it is described with 
less precision of boundaries than in the latter case. 



35 

The illustrious French jurisconsult, Monsieur Poincare, 
says in the third Memorandum in defense of Colombia 
(No. 30), that "the province designated under the name of 
Costa Rica in the cedula of February 23, 1560, and granted 
to the Licentiate Ortiz, Alcalde mayor of Nicaragua, did 
not embrace the ancient Province of Veragua and was no 
more than a little scrap of land {un petit lamheau de terre) 
included between the Provinces of Honduras and Nica- 
ragua and the Desaguadero." 

But in reading this Royal cedula, the name of Costa 
Rica is not to be found; on the other hand, it may be 
observed that Monsieur Poincare has omitted the last 
part of the description * * * "on the side of the 
cities of Nombre de Dios and Panama, between the 
South Sea and that of the North." 

With the text thus clipped, the result for Colombia 
was that "le petit lamheau de terre'' called Costa Rica 
was the Mosquito Coast extending from the Desaguadero, 
or River San Juan, toward the north, which later became 
the Province of Teguzgalpa. And if it is certain that this 
portion was also included in the Costa Rica of Sanchez 
de Badajoz and the Cartago of Diego Gutierrez, it is not 
that the territory entrusted (not granted) to the Alcalde 
mayor of Nicaragua should terminate at the Desaguadero, 
but that it was extended ' ' to the side of (a la parte de) the 
cities of Nombre de Dios and Panama, between the South 
Sea and that of the North," that is to say, as far as Tierra 
Firme, which signifies a further abrogation of the Royal 
cedula of 1537, upon which Colombia bases her rights. 

(c) Juan de Cavallon {1560). 

While Philip II conferred upon Ortiz de Elgueta the 
commission mentioned, the Audiencia of the Confines 



36 

(Guatemala) gave a similar charge to the Licentiate Juan 
de Cavallon, who had been Alcalde mayor of Nicaragua; 
and advised the King, on December i8, 1559 (Doc. No. 35), 
that it had commanded him to make settlements in the 
Province of Veragua "which is otherwise called by the 
name of New Cartago * * * in this district of ours;" 
the Audiencia also issued a Royal provision on January 30, 
1560 (Doc. No. 36), by which the said Cavallon is granted 
the regulation and license to explore, settle and govern 
(with the title of Alcalde mayor) the Province of Cartago, 
or New Cartago and Costa Rica, from that of Nicaragua. 
The King replied to the Audiencia of the Confines by 
the Royal cedula of July 18, 1560 (Doc. No. 39), which 
begins thus : 

"You state that the Province of Veragua, which 
is otherwise called by the name of New Cartago, is 
in that district of yours and borders on the Province 
of Nicoya, where we always have a corregidor * * *." 

And referring to the propositions for its exploration 
and settlement, the King states as follows : 

"For the settlement of Nicoya and territory 
adjacent thereto, we have provided the Licentiate 
Ortiz, our Alcalde mayor of the Province of Nicaragua, 
to whom was given the commission necessary therefor ; 
and as to the territory that there is in Veragua, on 
the side of Nata, Captain Francisco Vazquez has 
settled it by our order. When the commission of each 
is examined by you, the proper order will be given." 

Colombia has brought to her defense a report pre- 
pared by various distinguished archivists, librarians and 
lawyers of Seville, where the Archives of the Indies are 
kept, concerning this Royal cedula of July 18, 1560; they 
interpret it as follows: 



37 

"The King established with perfect clearness 
the difference that there is between the territory 
of Nicoya, the settlement of which had been en- 
trusted to the Licentiate Ortiz, and the other territory 
not contiguous to Nicoya, territory belonging to 
Veragua, and which, also by Royal order, the Captain 
Francisco Vazquez was settling. The expression ' on 
the side of Natd ' (por la parte de Natd) merely indi- 
cates the point from whence Francisco Vazquez set 
out with his men to conquer the territory of Veragua." 

Monsieur Poincare, making this report his own, states 
that there had been omitted in the copy of this Royal 
cedula, cited by Costa Rica, a comma after "Veragua" 
and before "on the side of Natd," that the name of the 
Licentiate Ortiz had been confused with that of the 
Licentiate Cavallon, and that the grant to the Licentiate 
Ortiz was from Honduras as far as the Desaguadero (third 
Memorandum of Colombia, No. 30) . 

Putting aside the latter assertion, which we have just 
refuted, we will say that the comma does not affect the 
sense of the text, which, indeed, could not be clearer. 
The Royal cedula does not place the territory of Nicoya 
in opposition to that of Veragua, nor does it say that only 
the former was entrusted to the Licentiate Ortiz, because 
the latter belonged to the other conquest which Francisco 
Vazquez had begun by Nata. 

What this Royal cedula does state, and most clearly, 
are the very conclusions we have just presented; that is, 
that the ancient Veragua had been divided into two parts ; 
one, the grant under the government of Francisco Vazquez, 
by which the Province of Veragua was instituted; and 
the other, that which was entrusted to Ortiz de Klgueta, 
coterminous with Nicoya, and to which the Audiencia of 
the Confines referred in delivering it to Cavallon, and of 



38 

which, furthermore, the King had disposed in conferring 
it upon the former. The Royal cedula refers precisely 
to the commission given to the Licentiate Ortiz, who is 
mentioned therein by name, which commission was not 
revoked until later, and then in favor of Cavallon. It is 
impossible to interpret a legal document with any degree 
of certainty which is a part of an historical series, without 
reading it in connection with its antecedents; the best 
experts will fall into error if they do not follow this pro- 
cedure or if they undertake to consider that document as 
an isolated fact. 

How Cavallon himself interpreted the concession made 
to him by the Audiencia of the Confines is very clearly 
shown by the legal authority which he granted on Septem- 
ber 22, 1560 (Doc. No. 41), to his associate and deputy, 
Juan Estrada Ravago, so that he might represent him in 
his charge and undertaking. Cavallon declares that the 
Province of Cartago and Costa Rica, the settlement of 
which belonged to him — 

" * * * is all the territory that is left in the Province 
of Veragua, from sea to sea, inclusive, and which 
begins from where ends the square of twenty-five 
leagues that His Majesty granted to the Admiral 
Don Luis Columbus, toward the west * * * and 
it terminates at the Rio Grande, toward the west, 
on the other side of Cape Camaron." 

PhiHp II, who had, as we have seen, reserved the right 
to provide in regard to the matter, acted by Royal cedula 
of February 5, 1561 (Doc. No. 42), addressed to the 
Audiencia of the Confines, saying that he revoked the 
commission which he had given to Licentiate Ortiz, and 
directed that the Licentiate Cavallon execute it under the 



39 

same conditions provided as to the former, and that, if 
the latter did not accept it, a judge of the said Audiencia 
should go, or that body should appoint another person to 
carry out the commission in the same manner. The same 
directions were given in another Royal cedula of the same 
date, addressed to Cavallon. 

It is clearly understood that when the King turned over 
to Cavallon the undertaking he had entrusted to Ortiz^ 
he performed an act of pure sovereignty, establishing 
thereby a different demarcation of the Province of Veragua 
which was under the charge of Francisco Vazquez. 

In view of the results of the expeditions of Cavallon 
the Audiencia of the Confines thereunto duly authorized, 
appointed him, by Royal provision of May 17, 1561 (Doc. 
No. 44), Alcalde mayor of New Cartago and Costa Rica, 
and stated that his jurisdiction, was to extend — 

" * * * from the boundaries of the village of Nicoya, 
of the said Province of Nicaragua, forward * * * 
as far as the limits and jurisdiction of the city of 
Nata, of the Kingdom of Tierra Firme, called Castilla 
del Oro, the length of the land to the borders of the 
Dukedom of Veragua, and from the South Sea to the 
North Sea, as far as the Desaguadero, inclusive." 

The King, by Royal cedulas of August 4, 1561 (Doc. Nos. 
45, 46 and 47), confirmed the appointment of Cavallon 
as Alcalde mayor and of Estrada Ravago as his representa- 
tive, congratulating both at the same time upon the 
success of their expeditions, the one by land and the other 
by sea; and he authorized Cavallon to go back whenever 
he might desire to reside in the Audiencia of the Confines, 
of which he was appointed the Fiscal. 
1607 — 4 



40 



(d) Denial of the request of the Governor of Tierra Firme, 
Figuerola {ij6i). 

Don Rafael Figuerola, Governor of Tierra Firme, having 
received word of the death of the Governor of the Province 
of Veragua, Francisco Vazquez, and that the Audiencia 
of the Confines had authorized the Licentiate Cavallon 
"to make the entry into Costa Rica," applied to the King 
for his own appointment as Governor of the Province of 
Veragua, and asked that the entry into that of Costa Rica 
should be prohibited to everybody who did not come from 
him. He based this latter request upon the fact that the 
Count of Nieva, Viceroy of Peru, had authorized him to 
enter into the Dukedom of Veragua, as he in fact had done, 
continuing into the "interior territory," as he showed in 
the report of an inquest, which accompanied his applica- 
tion (Doc. No. 233). 

Philip II communicated to him, by Royal cedula dated 
at Madrid on August 9, 1561 (Doc. No. 48), the following 
resolution, which is of the greatest importance to the 
question we are discussing : 

" * * * as soon as We knew the death of Francisco 
Vazquez, whom We had designated for the govern- 
ment of the said Province of Veragua, We appointed 
for the said government Francisco Vazquez, his son 
* * *. And, also. We have approved and held to 
be good the said commission that was given by the 
said Audiencia of the Confines to the said Licentiate 
Cavallon, in order to make the exploration of the 
Province of Cartago and Costa Rica * * * ; therefore, 
I command you that * * * you leave the Govern- 
ment of the said Province of Veragua to the said 
Francisco Vazquez, and that you do not interfere to 
explore and settle the said Province of Cartago and 



41 

Costa Rica, but leave it to be done by the said 
Licentiate Cavallon * * * and if you shall have 
made any discovery or settlement, you shall leave it 
in the state and condition it may be, without doing 
more therein ; and this you shall do and comply with 
under the penalties imposed upon persons who do not 
obey the commands of their King and natural Lord." 

Monsieur Poincare, in the third Memorandum of Colom- 
bia hereinbefore cited (No. 32), attaches little importance 
to this Royal cedula; he says that it shows that Costa 
Rica bordered on the Province of Veragua and was dis- 
tinguished from it, but that the Province of Veragua was 
distinct from the old dukedom ' ' attached {r attache) to the 
city of Nata," and that just as it was defined by the Royal 
cedula of 1537 it belonged jointly with the dukedom itself 
to the Audiencia of Panama. 

So, then, if Costa Rica bordered on the Province of 
Veragua and was distinguished therefrom, it is clear that 
it was not the Province of Veragua. The petition of Don 
Rafael Figuerola, giving expression to a personal desire, 
was the same as the claim of Colombia and was based 
upon the following syllogism : All Veragua constitutes one 
entity and belongs to the Government of Tierra Firme; 
the Dukedom of Veragua and Costa Rica are also Veragua 
and I am Governor of Tierra Firme; therefore place me 
in possession of the Dukedom of Veragua and of Costa 
Rica. But the King denied his petition, declaring that 
Veragua and Costa Rica were two distinct provinces, with 
different governments and forbade his interference in 
either of them. 

Substitute the name of Colombia or Panama for 
Figuerola, and that of the Arbitrator for Phihp II, and 
the present conflict would be solved, without^ however, 



42 

denying to Panama her rights over the Province of Veragua 
as differentiated from Costa Rica. 



(e) Vazquez de Coronado {1J62). 

Cavallon having left to assume his office of Fiscal of 
the Audiencia of the Confines, the latter appointed Juan 
Vazquez de Coronado as Alcalde mayor of New Cartago 
and Costa Rica, in the Royal provision of April 2, 1562 
(Doc. No. 49), and prescribed for that office the same 
conditions as were imposed on Cavallon when the latter 
"was given jurisdiction." 

Philip II, well pleased with the great services of Vazquez 
de Coronado, appointed him, by the Royal cedula of 
April 8, 1565 (Doc. No. 52), Governor for the whole of his 
life of "the Province and territory of Costa Rica," with 
all the necessary civil and criminal jurisdiction. On the 
same date he also appointed him Governor of Nicaragua 
for three years, in order to facilitate the settlement of 
Costa Rica, conferred upon him the title of Adelantado of 
Costa Rica, for himself and his successors (Doc. No. 53), 
and made him a grant of a square of land four leagues on 
each side, wherever he might select them in the latter 
province. Costa Rica, therefore, as may be seen, re- 
mained constituted as such province and was to have its 
own governor — an office which was increased in impor- 
tance through the fact that an Adelantado was going to be 
the first to hold it. 

The King instituted the province, provided, as stated, 
with a governor, under the single name of Costa Rica, 
and to it was given the same extension which was deter- 
mined upon when it was allotted to Ortiz de Elgueta; 



43 

this is shown by the Royal cedula of August 7, 1565 (Doc. 
No. 54), directed to Coronado, which begins thus: 

"To Juan Vazquez de Coronado, our Governor of 
the Province of Nicaragua and Costa Rica, and 
Adelantado of the said Province of Costa Rica: Hav- 
ing been informed that between the said province of 
Nicaragua and that of Honduras and the Desaguadero 
of Nicaragua, on the side of (a la parte de) the cities of 
Nombre de Dios and Panama, between the South Sea 
and that of the North, lay the said PROVINCE OF 
COSTA RICA, and that there were therein many 
Indians without light or knowledge of the faith, but 
who have shown a great desire to accept our authority, 
and receive the Christian doctrine, the President and 
Judges of our Royal Audiencia of the Confines ordered 
you and gave yoii a commission in our name and that 
you should go and make settlements therein * * * 
and place under our Crown and Royal Lordship the 
said * * * territory." 

And after stating what Coronado had done and that 
he, the King, had directed "its consideration" in the 
Council of the Indies, he charged him that "this territory 
shall be settled and placed under good administration and 
order," for which purpose he gave to him the proper 
instruction. 

This Royal cedula is a repetition of the one directed 
to Ortiz de Blgueta, and contains the same statement of 
boundaries in almost the same language, but in this cedula 
the expression "the Province of Costa Rica,'' is used con- 
cretely, the direction given by the Audiencia of the Con- 
fines to Coronado is confirmed and the work of exploration 
and settlement already realized within those boundaries 
is approved, and authorization is given for its conclusion 
in the same way that it had been begun. 



44 



(f) Pcrafdn de Rihera {ij66). 

Vazquez de Coronado having perished on his return 
voyage to America, the King appointed Perafan de Ribera 
Governor of the Province of Costa Rica, by the Royal cedula 
of July 19, 1566 (Doc. No. 56). This cedula, however, 
does not indicate the boundaries of the territory, the same 
having been already fixed; but it does state that the 
governor shall exercise his office "in the matters that it 
has been customary for the governors who have been up 
to this time in the said province to conduct." 

Perafan de Ribera continued the work of his predeces- 
sors, and presented to the King on July 28, 1571 (Doc. 
No. 58), a "Relation of the Province of Costa Rica," in 
which he gives a report of his journeys and of the condi- 
tion in which that province was found. Wearied by his 
labors and broken down by his misfortunes and poverty, 
he resigned his government and left the province in 1573. 

(4) The Province of Costa Rica definitively or- 
ganized; Government of Artieda (1573). 

Cavallon, Estrada Ravago, Vazquez de Coronado and 
Perafan de Ribera were the ones who by their conquests 
and establishments created, in fact, the Province of Costa 
Rica and within the legal boundaries established by the 
Crown, at the initiation of that work of discovery and 
settlement, by the orders and instructions given to the 
Alcalde mayor of Nicaragua, Ortiz de Elgueta. 

Philip II, knowing the results of the work he had under- 
taken, and considering the general advantages to be 
derived from those portions of his dominions, was able 
with full knowledge of the matter to definitively constitute 



45 

the Province of Costa Rica and trace its boundaries with 
certainty, as he did by his Royal cedula dated at the 
Pardo, December i, 1573 (Doc. No. 62). 

(a) Royal Cedula of Philip II, of December i, 1573. 

This Royal cedula, issued after consultation with the 
Council of the Indies, contains the capitulacion with Diego 
de Artieda, to discover, settle and pacify, at his own cost, 
the Province of Costa Rica, for which purpose he was 
granted the Government and Captaincy-General of this 
province for his own life and that of an heir, with a salary 
of two thousand ducats. 

The conditions under which he was to settle and govern 
the province were minutely fixed, and its boundaries indi- 
cated with great precision; he was also directed therein 
to take possession in the name of the King ' ' of that which 
might not have been appropriated." 

Twice are the boundaries fixed; the first time in great 
detail, when the method to be pursued in making the 
discovery and settlement is prescribed; the second, in 
more concise terms, when the government is granted to 
Artieda. 

In this second description of the Province of Costa Rica, 
which Artieda is about to discover, settle, pacify and 
govern, the Royal cedula of 1573 says that it is — 

"* * * from the North Sea to that of the South in 
latitude, and, in longitude from the borders of Nicaragua, 
on the side of Nicoya, straight forward to the Valleys of 
Chiriqui, as far as the Province of Veragua on the 
south side; and on that of the north, from the mouths 
of the Desaguadero, which is on the side of Nicaragua, 
all the territory as far as the Province of Veragua." 



46 

According to this demarcation, by virtue of the Royal 
cedula of 1573, there was segregated from the Province of 
Costa Rica its upper part, from the Desaguadero of 
Nicaragua northward; with this part the Province of 
Teguzgalpa (on the Mosquito Coast) was formed, and the 
differentiation of the Provinces of Costa Rica and Veragua 
was confirmed, thus leaving Costa Rica between Teguz- 
galpa and Veragua. 

(b) Formation of the Province of Teguzgalpa by its segrega- 
tion from the Province of Costa Rica, prior to 1573. 

Comparing the demarcation of the Royal cedula of 1573 
with the earlier demarcations of Costa Rica, it will be at 
once observed in the description that part of those demar- 
cations, "between the Province of Nicaragua and Hon- 
duras and the Desaguadero of Nicaragua ' ' was suppressed, 
by which suppressed part it had been made to reach from 
the latter as far as the River Grande and Cape Camaron. 
The Royal cedula fixed as the northern boundary of the 
Province of Costa Rica the Corregimiento of Nicoya and 
the Desaguadero of Nicaragua. 

By this adjustment tribute was paid to historical fact 
and concession made to convenience in administration, 
for although that portion was included in the demarcation 
of Ortiz de Elgueta, those who, in accordance therewith — 
Cavallon, Estrada, Coronado and Ribera — made the 
conquest and the establishments of Costa Rica, concen- 
trated their undertakings between the Desaguadero and 
the Province of Veragua, and the King acted with much 
discernment in segregating the upper territory which, from 
its geographical form and its distance frorn the capital, 
presented great difficulties in the way of administration. 



47 

This very segregation is the best proof of the error of 
Colombia's counsel who located the little scrap (le petit 
lambeau) called Costa Rica in the portion segregated, when 
in fact the province of that name was definitively con- 
stituted at the time it lost that portion. 

The result of that Royal cedula of 1573 was the issuance 
of that of February 10, 1576 (Doc. No. 65), by which 
Philip II created the Province of Teguzgalpa out of the 
segregated territory, giving it by capitulacion to Diego 
Lopez for settlement and government — a region "which 
comprises all the territory that is included from the mouth 
of the Desaguadero on the north side as far as Cape 
Camaron, in the same direction where the Province of 
Honduras begins * * *" (Doc. No. 234). 

This territory bordering on Honduras and with Nica- 
ragua was for a long time disputed by these Republics, 
until His Majesty the King of Spain, as arbitrator, decided 
the boundary question between the two in his Award of 
December 23, 1906 (Doc. No. 437), fixing the point of the 
divisionary line, for the part that belongs to each, at Cape 
Gracias a Dios. 

In that arbitration Don Francisco Silvela defended 
Honduras and Don Antonio Maura represented Nicaragua. 
These are the same two distinguished jurisconsults who 
have defended the rights of Colombia by maintaining that 
to her belonged all of the Veragua of the year 1537, and 
making that province reach as far as Cape Gracias a Dios. 

However, in the course of the argument in that arbitral 
proceeding, both agreed in disregarding the claims of 
Colombia to the territory of Veragua which began at the 
Desaguadero and which was called the Province of 
Teguzgalpa. 



48 ■ 

Sefior Silvela alleges, as one of the principal bases of 
the right of Honduras, the capitulacion of Artieda, of 
December i, 1573, saying distinctly: "THERE IS ONE 
SINGULAR THING IN THIS CAPITULACION AND 
THAT IS THE FIXING DEFINITIVELY OF THE 
BOUNDARIES OF COSTA RICA." {Alegato of Hon- 
duras, 1905, p. 128.) 

Sefior Maura, in the Reply of Nicaragua, 1905, asserts 
that the Cartago of Diego Gutierrez's capitulacion of 1540 
was framed out of the remains of the break-up or division 
of the ancient Province of Veragua (p. 109); that the 
capitulacion of Artieda, of 1573, clearly distinguished 
Costa Rica from the Province of Nicaragua (p. 72) ; that 
nothing is so conclusive as the capitulacion of Diego Lopez, 
of 1576, in which there was included (in order to form the 
Province of Teguzgalpa) all of the territory from the 
Desaguadero to Cape Camaron (p. 73) ; and that neither 
Honduras nor any one, casts doubt of the annexation to 
Nicaragua of the said coastal zone from the Desaguadero 
or San Juan River toward the north or the northeast (p.77) . 

Costa Rica, then, can rely for support on the authority 
of Sefiores Silvela and Maura, counsel for Colombia to 
combat the following broad assertion made by the latter 
in her Summary of Conclusions, presented to the President 
of the French RepubUc and subscribed by Monsieur 
Poincare in Paris on July 4, 1900: 

* ' All the Province of Veragua ought then to belong 
to Colombia. From its origin the Province of Vera- 
gua extended as far as Cape Gracias a Dios. (See 
the Royal cedula of March 2, 1537.) It has never 
been divided." 

(Toute la Province de Veragua doit done appartenir 
a la Colombie. Des I'origine, la Province de Vera- 



49 

gua s'est etendue jusqu'au cap de Gracias a Dios 
(Voir Cedule Royale du 2 Mars 1537). Elle n'a 
jamais ete divisee. 

(c) Boundaries with the Province of Veragua. 

The demarcation made to Ortiz de Elgueta (from the 
boundary of the segregated territory with which Teguz- 
galpa was formed) extended from sea to sea, "to the 
side of (a la parte de) the cities of Nombre de Dios and 
Panama." The Royal cedula of 1573 clearly fixed the 
Province of Veragua as the end of Costa Rica, both on 
the north and on the south ; it did more, since it expressly 
included within Costa Rica the Bocas del Drago on the 
north, and on the south the Valleys of Chiriqui. 

In prescribing the manner in which Artieda was to 
carry out his charge, he is told "* * * and you shall 
settle in the Province of Costa Rica three cities, * * * 
one of which must be at the Port of Bocas del Drago, which 
is on the North Sea of said province." 

By this name of Bocas del Drago there was designated 
the Bay of Almirante and the Lagoon of Chiriqui, into 
which empties the Guaymi, San Diego or Cricamola River, 
it being perfectly explained that its adjoining territories 
were included in Costa Rica because they had been 
traversed and conquered by the founders of this province, 
with the approval and praise of the King. Estrada 
Ravago founded, in 1560, the city of Castillo de Austria 
on the Bay of Almirante; Juan Vazquez de Coronado, in 
1564, subjected all the tribes of Indians that occupied its 
banks nearly as far as the Escudo de Veragua; and 
Perafan de Ribera traversed the same territories in 1570 
and 1571. 



50 

Diego de Artieda always understood that they belonged 
to his government, as is shown by his deeds and his com- 
munications to the King, during the fourteen years in 
which he had it in charge. The Royal cedula of August 
30, 1576 (Doc. No. 66), contains this phrase: "* * * it 
being very well known that the said Guaymi River and 
Bocas del Drago and the Almirante Bay are the same 
thing." The former, in fulfilment of the duty of founding 
a city at Bocas del Drago, founded the one that he called 
"Artieda," on the banks of the Guaymi River, as is evi- 
denced by the certificate of December 8, 1577 (Doc. No. 
67) ; and afterwards he took possession of the Valley of 
Guaymi, as is evidenced by a certificate delivered by a 
notary in March, 1578 (Doc. No. 68). In front of this 
valley is the island called Escudo dc Veragua. The King 
showed in his cedulas of June 3, 1580 (Doc. No. 69), that 
he was informed of -and satisfied with the settlements 
made by Artieda at Bocas del Drago. 

After Artieda, the indication of Escudo de Veragua 
was confirmed as the point of the divisionary line which 
left within Costa Rica the lands adjoining the Bay of 
Almirante and the Lagoon of Chiriqui. 

The Royal cedula of Philip III of May 31, 1600 (Doc. 
No. 71), directed to the Audiencia of Panama, indicated 
the Island of Escudo de Veragua as the end or western 
extremity of the warring Indian tribes of the Province of 
Veragua. In a certificate delivered by a notary on October 
10, 1605 (Doc. No. 72), Don Diego de Sojo testifies that 
by virtue of the commission given to him by Don Juan de 
Ocon de Trillo, Governor and Captain-General of Costa 
Rica, and in the name of the King, he founded the city 
of Santiago de Talamauca and, he says, he — 



51 

"* * * indicated for it and gave to it for juris- 
diction in latitude all the territory and district which 
there is from the summit of the Cordillera to the 
North Sea, and in longitude from the River Tarire 
and the ford that is crossed going from the said city 
to the Province of Tariaca, all the territory that runs 
to the east, which is the length of it as far as the 
BscuDO DE Veragua, which is the end that separates 
this Government from that of Veragua.'' 

The Province or region of Talamanca continued to 
belong to Costa Rica during the whole of the Spanish 
domination. 

The Valleys- of Chiriqui constitute that part of the 
Province of Costa Rica which borders upon the Province 
of Veragua, on the Pacific side. Colombia argues in her 
Memoranda (Second, p. 89, and Third, No. 47), that the 
capitulacion of Artieda does not speak of the Valleys of 
Chiriqui as a foreign frontier with Veragua, but only as 
designating a bearing, as though to say "in the direction 
of" those valleys. But the text of the Royal cedula of 
1573 does not admit of this interpretation, for, in stating 
the longitude of the Province of Costa Rica, it says 
specifically, "from the borders of Nicaragua, on the side 
of Nicoya, straightforward {derecho a) to the Valleys of 
Chiriqui, as far as the Province of Veragua, on the south 
side." The direction was indicated by the South Sea, 
that is the Pacific Ocean ; and in this direction the Royal 
cedula expressly declared the right of Costa Rica to the 
Valleys of Chiriqui. If it is claimed that those valleys 
only indicated a direction, the longitude of Costa Rica 
may be continued still further beyond them and its termi- 
nal extended "as far as the Province of Veragua." 

Such a declaration of right is not strange, inasmuch as 
Vazquez de Coronado and Perafan de Ribera had traversed 



52 

and taken possession of the plains or savannas of Chiriqui, 
and had considered them to be within their jurisdiction. 

Although Costa Rica had the right to the Valleys of 
Chiriqui, the later governors tolerated the encroachments 
of the Governors of Veragua as far as the Chiriqui Viejo 
River {old Chiriqui River — not to be confused with others 
of the same name not having this qualification) ; and this 
river was left as the divisionary line of Costa Rica, which 
meant for that country a loss of ten leagues in a square.^ 



note 



^Exactly 208 square leagues (1,872 square miles). Editor's 



V. 

THE QUESTION OF BOUNDARIES SETTLED BY THE 
ROYAL CEDULA OF 1573 AND NOT BY THAT OF 1537. 

(i) Importance, confirmation and Subsistence of the 
RoYAiv Ce;dui.a of 1573. 

The Royal cedula of Philip II of December i, 1573, 
is immensely important because it settled the question 
of boundaries pending between the Republics of Costa 
Rica and Panama, as far as relates to Spanish colonial 
law, for thereunder the Province of Costa Rica was 
definitively constituted and marked out; its legal existence 
and delimitation, however, is denied by the Republic of 
Panama, the successor to that of Colombia, on the assump- 
tion that it belonged to the latter as an integral part of 
the ancient Veragua. 

It results from all that has been said in the First Part 
of our opinion, that the Royal cedula of 1573 marked the 
end of the historico-legal evolution of Veragua, from the 
time when the whole of the coast discovered by Columbus, 
from Cape Honduras to the point of San Bias, was under- 
stood by that designation until it came to constitute three 
distinct provinces: that of Veragua, properly so-called, 
that of Costa Rica and that of Teguzgalpa. The differen- 
tiation of the primitive Veragua into two parts, the Ducal 
Veragua and the Royal Veragua, began by the creation of 
the Dukedom of Veragua (1537) and the granting of the 
capitulaciSn of Diego Gutierrez (1540), the result of which 
was the organization of two different provinces, in 1560: 
the Province of Veragua, under Francisco Vazquez and 
the Province of Costa Rica under Cavallon. The Royal 
cedula of 1573 divides the latter into two parts : that which 

(53) 

1607—5 



54 

is called Teguzgalpa and that properly denominated Costa 
Rica, in which latter is included Bocas del Drago and the 
Valleys of Chiriqui, places bordering upon the Province 
of Veragua. 

The demarcation established in this Royal cedula of 
1573 was confirmed: (i) by that of February 18, 1574 
(Doc. No. 63), which conferred upon Diego de Artieda 
the title of Governor and Captain-General of Costa Rica, 
and fixed at the same time the boundaries of his jurisdic- 
tion; (2) by the Ro3^al cedula of December 29, 1593 (Doc. 
No. 70), giving the government of this province to Don 
Fernando de la Cueva " as it was held by Diego de Artieda 
Chirino;" and (3) by the other Royal cedulas appointing 
governors and captain-generals, who held the position 
with the same salary and within the same bounded 
territory. 

This demarcation is also confirmed by the facts to which 
we have referred relating to the boundaries, and many 
acts of the Superior Government, of the Audiencias and 
of the governors, relating thereto may be cited, since it 
was in force and subsisted until the end of the Spanish 
domination. Counsel for Colombia do not mention any 
other legal demarcation as a substitute therefor, aside 
from what they state in order to impugn it; but seek for 
support in the Recopilacion de Indias and in the Royal 
order of 1803. 

(2) Inefficacy and abrogation of the Royal cedula 
OF 1537. 

Colombia concentrates all her forces in support of the 
proposition that the question of boundaries with Costa 
Rica was settled by the Royal cedula of Carlos V, of 



55 

March 2, 1537, which placed under the administration of 
Tierra Firme (Castilla del Oro) all that was left of Veragua 
after taking away the twenty-five leagues for the dukedom. 
This means that from Colombia's viewpoint there is no 
question of boundaries with Costa Rica; rather is it a 
question of "to be or not to be," involving the very exist- 
ence of the latter as a nation, for Colombia believes that 
Costa Rica had no legal existence as a Spanish province 
and that her territory belonged to that of Tierra Firme, 
as did all of Royal Veragua. 

Bearing in mind that Carlos V, by this Royal cedula, 
provided that Royal Veragua should be kept under 
the Government of Tierra Firme whilst he might deem 
it desirable, it will be easy to understand its inefiicacy 
against later dispositions of the Crown, since in issuing 
them it was not infringed. 

But if there is any desire to keep it alive, forgetting 
its conditional character, it must be said that it was 
repeatedly abrogated, whenever, indeed, the Sovereign 
made divisions of the territory of Veragua and created 
different governments from that of Tierra Firme, and also 
whenever he confirmed these changes. 

Thus, the Royal cedula of March 2, 1537, was abrogated : 

1 . By the Royal cedulas of November 29, and December 
16, 1540 (Doc. Nos. 18 and 19), giving under capitulacion 
to Diego Gutierrez the Province of Cartago and appointing 
him the Governor thereof ; that of January 1 1 , 1541 (Doc. 
No. 20), directing all the governors of the Indies to respect 
the boundaries of this Government, and that of February 
22, 1549 (Doc. No. 30), giving the title of Governor to 
Perez de Cabrera, as successor to Gutierrez. 

2. By the Royal cedula of December 13, 1559 (Doc. 
No. 34), establishing the demarcation which was given 



56 

to Ortiz de Elgueta; that of February 23, 1560 (Doc. 
No. 37), ordering the Audiencia of Guatemala to respect 
it; that of February 5, 1561 (Doc. No. 42), revoking the 
commission given to Ortiz and turning it over on the same 
terms to Cavallon, and that of August 4, of the same year 
(Doc. No. 47), confirming the appointment of Alcalde 
mayor given by the Audiencia to Cavallon whose acts of 
settlement and those of his deputy Ravago were approved. 

3. By the Royal cedula of July 18, 1560 (Doc. No. 39), 
which divided Veragua into two parts, one allotted to 
Ortiz de Elgueta and the other to Francisco Vazquez; 
that of August 20 of the same year (Doc. No. 40) appoint- 
ing Francisco Vazquez Governor and Captain-General of 
the Province of Veragua; and that of August 9, 1561 
(Doc. No. 48) denying the claims of Figuerola, by right of 
his office of Governor of Tierra Firme and by order of 
the Viceroy of Peru, to govern and settle the Province of 
Veragua and that of Costa Rica, because these were under 
the respective charges of Alonso Vazquez and Cavallon — 
a most important cedula, therefore, inasmuch as those 
claims were the same as those now made by Colombia and 
Panama. 

4. By the Royal cedula of April 8, 1565 (Doc. No. 53), 
appointing Vazquez de Coronado Governor and Captain- 
General of Costa Rica; and by that of August 7, following 
(Doc. No. 54), describing the province under his command 
in the same manner as in the commission given to Ortiz 
de Elgueta. 

5. By the Royal cedula of December i, 1573 (Doc. 
No. 62), approving the capitnlacion of Diego de Artieda, 
by which Teguzgalpa was segregated from the Province of 
Costa Rica and the boundaries of the latter fixed with that 
of Veragua; that of February 18, 1574 (Doc. No. 63), 



57 

conferring upon him the title of Governor and Captain- 
General of Costa Rica, with that demarcation; that of 
February lo, 1576 (Doc. No. 65), creating the Province of 
Teguzgalpa; that of August 30 of the same year (Doc. 
No. 66), defining the boundaries of Costa Rica by Bocas 
del Drago; and that of June 3, 1580 (Doc. No. 69), ap- 
proving the conduct of Diego dc Artieda in respect to the 
settlements he made within the limits of his jurisdiction. 

6. By the Royal cedula of December 29, 1593 (Doc. 
No. 70), granting to Don Fernando de la Cueva the 
Government of Costa Rica as it had been held by Diego 
de Artieda; the appointment of the later governors of 
Costa Rica and the disposition concerning the adjacent 
audiencias, of which we will speak later. 

There can not, then, be the slightest doubt that the 
Province of Costa Rica was legally constituted and 
marked out by the Royal cedula of Philip II, of 1573, and 
not by that of Carlos V, of 1537, which was ineffectual in 
itself and the subject of so many abrogations. 



PART SECOND 



THE RECOPILACION DE INDIAS RESPECTED AND 
CONFIRMED THE EXISTENCE AND DEMARCATION 
OF COSTA RICA. 



I. THE RECOPILACION DE INDIAS AND ITS ABRO= 
QATIVE FORCE. 

(i) The Argument oe Colombia. 

(2) General Consideration Concerning the Re- 

COPIEACION DE InDIAS AND HoW ITS LaWS 

Respect and Confirm the Existence and 
Demarcation of Costa Rica. 

11. THE DEMARCATION OF THE AUDIENCIAS. 

(i) Importance of the Audiencias in the Gov- 
ernment OF the Indies. 

(2) History of the Audiencias of Panama and 

Guatemala. 

(3) Comparison Between Laws 4 and 6 of Title 

15, Book II, Which Treat of These Audi- 
encias. 

(4) Interpretation of I^aw 4; What Were Cas- 

TILLA DEL OrO, NaTA AND THE GOVERNMENT 

OF Veragua, Which Were Included by 
That Law in the Audiencia of Panama. 

(5) Interpretation of Law 6; The Omission of 

THE Name of Costa Rica of no Importance 
in Treating of the Audiencia of Guate- 
mala. 

(59) 



60 



III. COSTA RICA WAS EXPRESSLY RECOGNIZED BY 

THE RECOPILACION AS A PROVINCE OF THE 
AUDIENCIA OF GUATEMALA OF THE VICE= 
ROYALTY OF MEXICO. 

(i) Law I, Title 2, Book V, of* the Recopii,aci6n; 
Its Importance. 

(2) This Law is a Resultant of the History op 
Costa Rica, Which Always Depended Upon 
the audiencia of guatemala: 

(a) From the Creation of that Audiencia to ijdj. 

(b) From its Re-establishment {1568) down to the 

Prom^ulgation of the Recopilacion {1680). 

IV. INTERPRETATION OF LAW 9, TITLE 1, BOOK V, 

DECLARING THAT THE WHOLE OF THE PROV= 
INCE OF VERAGUA IS UNDER THE GOVERN= 
MENT OF TIERRA FIRME. 

(i) The whole Province of Veragua cannot 
BE referred to as being the Veragua of 
1537- 

(2) Nor is the Hypothesis Admissible that 

Veragua is a Major and Costa Rica a 
Minor Province. 

(3) Explanation of this Law, by Making it Refer 

TO THE Province Emanating from the 
Dukedom. 

(4) Case of Supposed Contradiction of this I<aw 

with Others. 



61 



V. VALIDITY OF THE ROYAL CEDULAS WHICH ARE 
DEMARCATORY ACCORDING TO THE RECOPI= 
LACION. 

(i) Principles Established by the Recopilacion 
IN Regard to the Validity op the Royal 
Cedulas Prior and Subsequent Thereto. 

(2) Legality of Territorial Division and the 

Boundaries of Districts. 

(3 ) Special Consideration of the Capitulaciones ; 

(a) Juridical Character of the Capitulaciones; 

(b) The Capitulaciones in the light of hook 4 of 

the Recopilacion; 

(c) Capitulaciones Originating the Provinces of 

Veragua and Costa Rica. 

(4) Unilateral Acts of the Crown in the Un- 

questionable Exercise of Sovereignty and 
Titles of the Governors. Final Deduc- 
tions. 



I. 

THE RECOPILACION DE INDIAS AND ITS ABRO= 
QATIVE FORCE. 

(i) The Argume;nt of Colombia. 

It seems impossible, after what we have said with 
respect to the inefficacy of the Royal cedula of March 
2, 1537, and its numerous abrogations (especially by 
that of 1573), that Colombia could have maintained the 
subsistence of the former in contravention of the legal 
principle that "the later law abrogates the prior ones." 
But she did; because, relying on this same principle, 
she gives it as her understanding that the Recopilacion 
de Indias re-established the cedula of 1537 and repealed 
all the dispositions that had abrogated it. 

Senor Silvela and Monsieur Poincare, in their briefs 
in defense of Colombia, rely upon the Royal cedula of 
Carlos II, of May 18, 1680 (Doc. No. 91), which sanc- 
tioned the Recopilacion, and which was published at the 
beginning of it, when they make the assertion that this 
code — a summary of all the Royal dispositions which 
constituted the system of government for the dominions 
of Spain beyond the seas — abrogated everything that was 
not included within it, because the King said, "it is our 
will that from now forward they shall not have any 
authority whatever." 

Senor Maura in his opinion embodied in the defence 
of Colombia, formulates "the synthetical idea," of the 
litigation, saying that none of the documents prior to the 
Royal cedula of May 18, 1680, can be taken into considera- 
tion, except under the condition that they be submitted 
to the obligatory force of the compiled laws, which in 
every case must prevail over contrary disposition; and 

(62) 



63 

after adding that this principle greatly simplifies the 
litigation, he goes on to show that the Compilation of the 
Laws of the Indies was not a mere collection but a real 
body of laws in which was reenacted all the preceding 
legislation, with the repeal thereby of whatever was not 
included, as was done in the " Fuero Juzgo" (ancient laws 
by the Gothic Kings), the "Fuero Vie jo" (ancient laws), 
the "Siete Partidas" the laws of Castile compiled by King 
Alfonso the Tenth) and the statutory compilations of 
Aragon, Catalonia, Navarre and Majorca. 

Starting from this basis, counsel for Colombia deny the 
existence of the Province of Costa Rica, on the ground 
that they do not find it mentioned in the laws fixing 
demarcations of audiencias ; they merge it in the Province 
of Veragua, and put the latter back under the Royal 
cedula of 1537 because they find the latter cited in one 
of the laws, and, finally, take from the Royal cedulas that 
fix boundaries all of their authority, because they do not 
find them converted into laws. 

(2) Generai^ consideration concerning the Recopila- 

CION DE IndIAS and HOW ITS I^AWS RESPECT AND 

confirm the existence and demarcation of 
Costa Rica. 

The Recopilacion of the Laws of the Indies was not, 
in fact, a collection (repertorio or repertoire) compiled with 
the single purpose of facilitating a knowledge of the old 
dispositions ; neither was it a code in the scientific accepta- 
tion of that word; that is a coordinate grouping of a 
particular system of laws under one common principle of 
unity, formulated once for all and without continuous 
references to ancient laws further than may be inspired 
thereby. 

The Recopilacion de Indias was, like all compilations, 
a collection of the laws of various periods. The texts of 



64 

these laws were reproduced, in whole, or part, or in modi- 
fied form, the chronological sequence of some having been 
changed for greater convenience, and the citation of its 
origin or source having been inserted at the head, or on 
the margin, of each; and it is clear that it may be com- 
pared, in this respect, with other compilations which were 
made in vSpain, with the exception of Siete Pariidas, which 
possessed the characteristics of a code. 

It is certain that the Recopilacion de Indias did have 
abrogative force; not absolute, however, as the counsel for 
Colombia assert, but limited, as was clearly expressed in 
said Royal cedula of Carlos II, of May i8, 1680, the 
latter part of which counsel persistently omit. This Royal 
cedula, after directing that the Laws of the Recopilacion 
shall control, specifically states, 

" * * * leaving in their force and vigor the Cedulas 
and Ordinances given to our Royal Audiencias, in so 
far as they are not contrary to the Laws herein." 

And in various texts of the Recopilacion the subsistence 
of prior dispositions is declared, always, of course, under 
the condition that they are not contrary to the said laws. 

Therefore, the Laws of the Recopilacion respect and 
confirm the existence of the Province of Costa Rica, since, 
far from suppressing it, they expressly recognized it ; they 
respect and confirm also the boundaries which it then had, 
as they did not modify the demarcation of audiencias, 
and the law concerning the boundaries of governments 
declares in force the existing legal situation. 

In the development of this thesis, we will take up all 
the questions which have been the subject of controversy 
and relate to the Recopilacion de Indias, expounding them 
in the order which we consider most desirable for clearness 
in the demonstration. 



II. 

THE DEMARCATION OF THE AUDIENCIAS. 

(i) Importance of the Audiencias in the Govern- 
ment OF THE Indies. 

Carlos V divided the government of the American 
territories into two great viceroyalties, that of New Spain 
(Mexico) and that of Peru; he subdivided the former 
into the four audiencias, of Santo Domingo, Mexico, 
Guatemala and Guadalajara, which he created; and the 
second into the three audiencias of Panama, Lima and 
Santa Fe, which he also created. The number of the 
audiencias in Peru was increased by Philip II, with the 
addition of those of Charcas and Quito, by Philip III 
with that of Chile, and, by Philip IV, with that of Buenos 
Aires. 

This division of territory into audiencias was not merely 
judicial, but of a general character and admirably adapted. 
Each audiencia had under its charge, besides the admin- 
istration of justice, the entire civil and even military 
government of the provinces included in its district. 

Law I, title 15, book II (Doc. No. 105), of the Recopila- 
cion, states that in all the territory that had been dis- 
covered up to that time in the Kingdoms and Seignories 
of the Indies, there were founded twelve audiencias and 
Royal chancelleries (the eleven mentioned and that of 
Manila), "* * * in order that our vassals may have 
those who may govern and rule them in peace and with 
justice; and whereas their districts have been divided 
into Governments, Corregimientos and Alcaldias may ores 
* * * which are subordinate to the Royal Audiencias 



(65) 



66 



And in this same title the boundaries of the district of 
each one of them are indicated. 

The fact, therefore, that a province belonged to a 
particular audiencia, not only signified that it depended 
upon it judicially, but also for civil government. 

(2) History of the Audiencias of Panama and Guate- 
mala. 

Colombia, starting out with the theory that she is the 
heir of the whole of the territory which was under the 
Audiencia of Panama (also called Tierra Firme) makes 
every effort to prove that the Recopilacion, in including 
all of the Province of Veragua in the Government of 
Tierra Firme — according to the Royal cedula of 1537 — 
also included the territory of Costa Rica by reason of its 
being comprehended in the Veragua of that epoch. Leav- 
ing till later the interpretation of the law which especially 
refers to the Province of Veragua, and which, as we shall 
see, is the province that arose out of the dukedom, let 
us now examine the laws that treat of the demarcation 
of the Audiencias of Panama and Guatemala. But before 
doing so, the history of those two audiencias should be 
briefly related because it is quite complicated, and also 
because it will tend to dissipate another of the equivoques 
of which Colombia has made use in her quibbling; to wit, 
that the Audiencia of Panama was a very different thing, 
according to whether it is taken as existing alone in that 
part of America, or in co-existence with that of Guatemala. 

The Audiencia of Santo Domingo of the Island of 
Espahola was founded in 1526, the first of those estab- 
lished in the Indies, and it had under its jurisdiction, 
besides, the islands of the Sea of the Antilles, the terri- 



67 



tories on the coast discovered by Columbus during his 
last voyage, to which were given the name of Veragua, 
and the rest which were discovered on the Isthmus and 
in southern America. 

But at the same time that the conquest and government 
of Veragua was being organized under Felipe Gutierrez 
and the Dukedom of Veragua created — and perhaps with 
the latter creation in view — the establishment of another 
audiencia was under way; to this was given the name of 
Panama in Tierra Firme. We infer this from Law 4, 
title 15, book II, of the Recopilacion (Doc. No. 106), 
referring to this audiencia, which cites as the origin thereof 
the Royal cedula of February 30, 1535, issued two months 
after the approval of the capitulacion with Felipe 
Gutierrez, and that of March 2, 1537; that is, when this 
capitulacion was revoked, the existence of the dukedom 
(created in the same year) was ratified, and it was declared 
that the rest of Veragua would be understood to be under 
the Government of the Province of Tierra Firme, called 
Castilla del Oro, until the Crown should otherwise provide. 

The Audiencia of Panama, which was constituted by 
the Royal cedula and ordinances of February 26, 1538 
(Doc. No. 14), comprised within its district — 

"the Province of Tierra Firme, called Castilla del 
Oro, and Provinces of the Rio de la Plata and the 
Strait of Magellan, and New Toledo and New Castile, 
called Peru, and River San Juan, Nicaragua and 
Cartagena and Dukedom of Zorobaro, and whatever 
islands and provinces there might be both on the 
South Sea as well as on the North Sea." 

In view of the impossibility of governing such an 
enormous territory (Central and South America), and 



68 

after the death of Pizarro in Peru and of Alvarado in 
New Spain, Carlos V divided it in his Ordinances of 
Barcelona, November 20, 1542 (Doc. No. 26), called the 
"New Laws" and also "Laws of Reformation of the 
Indies," by suppressing the Audiencia of Panama, creat- 
ing the Viceroyalty of Peru with an audiencia in Lima 
and directing another audiencia to be established "within 
the confines of Guatemala and Nicaragua * * *" which 
"shall have under its charge the government of said 
provinces and adjacent regions." 

By the Royal cedula of September 13, 1543 (Doc. No. 
27), this latter audiencia was in fact created, and denomi- 
nated the Audiencia of the Confines (of the confines, or 
borders, of Guatemala), comprising within its district the 
provinces of Guatemala, Nicaragua, Chiapa, Yocatan, 
Cozumel, Higueras, Cape Honduras "'■' * * and all 
other provinces and islands that there may be on the 
coast and in the region of the said provinces as far as the 
Province of Tierra Firme called Castilla del Oro, inclusive ;" 
that is to say, the whole of Central America, including 
Veragua, although it was not mentioned. This audiencia 
was first installed in the city of Gracias a Dios (1544) and 
afterwards transferred to that of Santiago de los Cabal- 
leros de Guatemala (1550), and from which it was given 
the latter name. 

But in moving from one capital to another, its district 
was reduced. Castilla del Oro was lost to it in conse- 
quence of the reform made in the Audiencia of Lima 
whereby a part of the latter was taken away to form the 
Audiencia of Santa Fe de Bogota in the New Kingdom of 
Granada, in obedience to the Royal cedula of June 17, 
1549. And there is not the slightest doubt but that Cas- 
tilla del Oro was separated from the Audiencia of the 



69 

ConfinCvS, or Guatemala, and therefore from Veragua, for 
the Royal cedula of Carlos V, of May 2, 1550 (Doc. No. 
133), which is I^aw 7, title i, book V, of the Recopilacion 
de Indias, specifically says : 

"We command that the Province of Tierra Firme, 
called Castilla del Oro, shall belong to the Provinces of 
Peru and not to those of New Spain (Mexico)." 

Abuses committed by the Audiencia of the Confines, 
or Guatemala, and the convenience of better service, 
led to its transformation into the Audiencia of Panama, 
upon the territorial basis of that of Guatemala, with 
important modifications, however, by the Royal cedula of 
Philip II, of September 8, 1563 (Doc. No. 50); and its 
headquarters were transferred to the city of Panama. 
The audiencia lost, according to that cedula, the Province 
of Guatemala and other territories in the north, and was 
given for a boundary the Gulf of Fonseca, exclusive, and 
the Ulua River, and it gained the Province of Castilla del 
Oro as far as the Darien River, exclusive. 

The Viceroy and the Audiencia of New Spain (Mexico) 
stated to the King, on February 26, 1564, the defects in 
this reform, and begged that the Audiencia of Guatemala 
might be re-established; this petition was granted in 
January, 1567, and that audencia replaced in the condition 
it was prior to 1563. The Royal cedula of June 28, 1568 
(Doc. No. 57), expressly designated as integral parts 
thereof, the Provinces of Guatemala, Chiapa, Higueras, 
Verapaz, Cape Honduras, and Nicaragua "* * * and 
whatever other islands and provinces there may be on the 
coast and in the region of the said provinces, as far as the 
Province of Nicaragua." This audiencia was again in- 
stalled in the city of Santiago de los Caballeros on March 
3, 1570- 

1607 — 6 



70 

The Audiencia of Panama, however, did not disappear; 
there remained within it, in 1570, Tierra Firme and the 
Province of Veragua, which had been constituted in 1560, 
but not that of Costa Rica, which was contiguous with the 
Province of Nicaragua. 

The Audiencia of Guatemala continued thereafter as 
a dependency of the Viceroyalty of Mexico, whilst that of 
Panama, after the re-estabhshment of the latter, belonged 
to the Viceroyalty of Peru, and they were, respectively, 
the extremes and frontiers of the two viceroy alties. 

(3) Comparison Between Laws 4 and 6, of Title 15, 
Book II, Which Treat of these Audiencias. 

Law 4, title 15, book II (Doc. No. 106), of the Recopi- 
lacidn de Indias (according to the Royal cedulas which it 
cites with others as complements thereof, and to what was 
provided by Philip IV in the same Recopilacion), desig- 
nates in the following manner the district of the Audiencia 
of Panama: 

"It shall have for district the Province of Castilla 
del Oro, as far as Puertobelo and its territory; the 
city of Nata and its territory; the Government of 
Veragua; and, upon the South Sea, toward Peru, as 
far as the Port Buenaventura, exclusive; and from 
Puertobelo toward Cartagena, to the River Darien, 

exclusive, with the Gulf of Uraba and Tierra Firme 

* * * )> 

And in fixing the boundaries of this district, it says : 

"* * * bordering on the east and south upon 
the Audiencias of the New Kingdom of Granada and 
San Francisco de Quito; on the west with that of 
Santiago de Guatemala; and upon the North and 
South, upon the two seas of the North and vSouth." 



71 

Law 6 of the same title and book (Doc. No. 107), of the 
Recopilacion (according to the cedulas mentioned, which 
it cites with other complementary cedulas, and to what 
was provided by Philip IV), established the district of the 
Audiencia of Guatemala, as follows : 

"It shall have for its district the said Province of 
Guatemala, and those of Nicaragua, Chiapa, Higueras, 
Cape Honduras, Verapaz and Soconusco, with the 
islands of the coast." 

And it adds : 

"* * * bordering on the Bast upon the Audi- 
encia of Tierra Firme, on the West, upon that of New 
Galicia, and upon the latter and the North Sea, on 
the North, and, on the South, upon the South Sea." 

The first thing that is noted in comparing these two 
laws is that no geographical dividing line is designated 
between the Audiencia of Guatemala and that of Panama. 
They only state that one begins where the other ends; 
therefore they do not settle the question of boundaries 
between the Provinces of Costa Rica and Veragua. 

But from the enumeration made by these two laws of 
the provinces which are comprised in each of these audi- 
encias counsel for Colombia deduce that the territory of 
Costa Rica was included in the Audiencia of Panama, 
because this province does not appear to be mentioned by 
Law 6 as among those of the Audiencia of Guatemala, 
whereas Law 4 expressly includes the Government of 
Veragua in that of Panama. 

Let us see in the first place how far Law 4 goes with 
regard to the explicit inclusion, that being the affirmative 
part of the argument. We shall see later what may be 
the effect of the omission of the name in Law 6. 



72 



(4) Interpretation of Law 4; What Were Castilea 
DEL Oro, Nata and the Government of Veragua, 
Which Were Included by That Law in the 
AuDiENCiA OF Panama. 

Law 4 begins the description of the Audiencia of Panama 
with the Province of Casiilla del Oro, from Portobelo as 
far as the Darien River, exclusive. This province which, 
in some demarcations, appears as the extreme hmit of 
Royal Veragua, was included in the Audiencia of the 
Confines, or Guatemala, on the creation of the latter in 
1543; but the Royal cedula of May 2, 1550, directed that 
it should belong to the Viceroyalty of Peru, and not to 
that of New Spain (Mexico). It returned to the Audi- 
encia of the Confines when it was transferred to Panama, 
in 1563, and remained in that of Panama when the latter 
was dismembered by the re-establishment of the Audi- 
encia of Guatemala, in 1568; and in the Audiencia of 
Panama it was retained by the Recopilacion de Indias. 
These fluctuations reveal the fact that it was an inter- 
mediate province between the Viceroyalties of Mexico 
and Peru, in which the jurisdiction of the latter prevailed. 

In the direction of New Spain, Law 4, locates the city 
of Natd and its territory after Castilla del Oro, and lastly 
the Government of Veragua. Counsel for Colombia, con- 
tinuing to juggle with the equivoque involving this name, 
understand that this Government of Veragua was the 
Royal Veragua, in which Costa Rica was included, and 
not the Ducal Veragua, for the latter has been added to 
the city and territory of Natd. 

To dissipate this erroneous interpretation, it is enough 
to refer to what we have said in Part First, concerning 
the transformation of the Dukedom into the Province of 



73 

Veragua. When the dukedom was suppressed it was not 
added to Natd, but the residents of that city were author- 
ized to go into that country for conquest and settlement ; 
and it was by virtue of that authority that Francisco 
Vazquez went there with his men; he it was whom the 
Crown appointed, soon afterwards, Governor of the 
province that was then left definitively constituted (1560) 
under the name of Veragua (Ducal Veragua) ; and this is 
the Government to which Law 4 alludes, after speaking 
of the city of Nata and its territory. 

Natd, from its origin, in 1520, always belonged to the 
jurisdiction of Panama (Province and Audiencia), and 
was administered by an Alcalde mayor appointed by the 
Governor or President of the Audiencia of Tierra Firme. 
The Province of Veragua, which was formed from the 
dukedom, was raised to the status of a government and 
captaincy-general, which office was provided for by the 
King himself, it having by reason of its class and salary a 
higher rank than that of alcalde. Far from the Province 
of Veragua being united, or subordinated to the city of 
Nata, the residents of the latter were the ones who, tired 
of their alcaldes may ores, petitioned for the aggregation of 
their city to that province ; but without success. 

It cannot, therefore, be successfully maintained that 
the Dukedom of Veragua was comprised in Nata, in 
order, later, to include Costa Rica in the "Government 
of Veragua^ The farthest counsel for Colombia can 
go is to consider the two Veraguas — ducal and royal — - 
under this denomination. But to this is opposed the 
history of the formation of the two provinces of Veragua 
and Costa Rica, the fact of their existence at the time the 
Recopilacion was made, and the provisions of that Com- 
pilation, in its Law i, title 2, book V (Doc. No. 136), 



74 

entitled, '' de provision de oficios" (provisions for appoint- 
ments to office), under which there was reserved to the 
King the right to fill the office of Governor and Captain- 
General of the Province of Veragzia (with a salary of one 
thousand pesos), which is "in our Royal Audiencia of 
Panama," of Peru, and that of the Governor and Captain- 
General of the Province of Costa Rica (with a salary of 
two thousand ducats), which is "in our Royal Audiencia 
of Guatemala," of New Spain. 

In deference to this law, promulgated in the time of 
Carlos II, when the Rccopilacion was compiled, it is not 
possible to interpret the "Government of Veragua" by 
merging therein the Province of Costa Rica. 

(5) Interpretation of Law 6. The omission of the 
NAME of Costa Rica of no importance in treat- 
ing of the Audiencia of Guatemala. 

It is clearly established from what we have just said, 
that the Government of Costa Rica was included in the 
Audiencia of Guatemala, since it was so expressed in the 
Recopilacion itself, and it was a thing distinct from the 
Government of Veragua, with which the demarcation of 
the Audiencia of Panama ends, as stated by Law 4. 

The description made by Law 6 of the Audiencia of 
Guatemala is less detailed, doubtless because those who 
prepared the Recopilacion did not consider it necessary, 
after having specifically provided, in Law 4, that the 
Audiencia of Panama terminated with the Government of 
Veragua, deeming it sufficient to affirm that the Audiencia 
of Guatemala bordered with it on the east. The omission 
of the name of Costa Rica is explained also by the fact 
that instead of writing an entirely new law, they took 
for a text that of the Royal cedula of June 28, 1568, 



75 

which, with some corrections, they inserted in the Recopi- 
lacion. And as the main object of this Royal cedula was 
the advantage of leaving well determined the northern , 
part, which, upon the re-establishment of the Audiencia 
of Guatemala, was united to that audiencia, no description 
was made of the lower part, which had always belonged 
to the Audiencia of the Confines, for it was not the subject 
of doubt. 

But, although Costa Rica was not named in said Royal 
cedula, it was comprehended within the clause, "* * * 
and whatever other islands and provinces there may be 
on the coast and in the region of the said provinces," 
among which was mentioned that of Nicaragua. In 
ordering the promulgation of the "New Laws" of 1542, 
which created the Audiencia of the Confines (of Guate- 
mala and Nicaragua), it was provided that it should have 
under its charge " * * * the government of the said 
province and adjacent regions," a phrase similar to that 
employed in the re-establishment of that Audiencia, in 
1568, under the denomination of "Guatemala." 

The Audiencia of Guatemala having been re-established, 
that of Panama was advised, by Royal cedula of August 
12, 157 1 (Doc. No. 59), that it must no longer concern 
itself with the affairs of the former, while the Royal cedula 
of July 17, 1572 (Doc. No. 61), bestowed upon the 
Audiencia of Guatemala jurisdiction over the affairs of 
the Provinces of Nicaragua and Costa Rica. 

The affairs of Costa Rica continued to be dependent 
upon the Audiencia of Guatemala when the Recopilacion 
de Indias was published in 1680; and counsel for Colombia 
resort to the argument that even if Costa Rica had existed 
legally as a province, the omission of its name in the laws 
of demarcation of the contiguous audiencias signified its 



76 

suppression, and that the Recopilacion de Indias thus 
abrogated the prior Royal cedulas relating to it. 

But, although Law 6 does not mention the Province of 
Costa Rica, it includes it between Nicaragua and the 
divisionary line of the district of the Audiencia of Guate- 
mala, unless it be assumed, as Colombia does assume, 
that the Government of Veragua, of the Audiencia of 
Panama, reached as far as Nicaragua. But having proved 
that that Government did not include Costa Rica, which 
was recognized by the Recopilacion as a province belonging 
to the Audiencia of Guatemala, it must be agreed that 
Costa Rica was not suppressed by Law 6, although it 
was not expressly mentioned therein. 

To the foregoing we must add that the laws of demarca- 
tion of audiencias are not laws of creation and suppression 
of component provinces of their respective districts, but 
of differentiation of one district from another, for the 
purpose of establishing the external boundaries of the 
territorial jurisdictions of those audiencias. 

Whatever subtleties counsel for Colombia may appeal 
to in order to show that the Province of Costa Rica came 
to an end with the publication of the Recopilacion de 
Indias, their purpose cannot succeed in the face of the 
decisive reason that the latter expressly recognizes it and 
its author provided for its needs as such province. 



III. 

COSTA RICA WAS EXPRESSLY RECOGNIZED BY 
THE RECOPILACION AS A PROVINCE OF THE AUDI= 
ENCIA OF GUATEMALA OF THE VICEROYALTY OF 
MEXICO. 

(i) Law I, Title 2, Book V, of the Re:copii.aci6n; Its 

IMPORTANCE. 

The Kings of Spain having reserved to themselves the 
power to fill directly the offices of viceroys, captains- 
general, presidents and judges of audiencias, and the most 
important governments, corregimientos and alcaldias 
may ores, the. Law i, title 2, book V, of the Recopilacion 
enmnerated all of these offices with their annual compen- 
sations, and submitted them, classified under audiencias, 
for each of the two viceroyalties. 

The enumeration of the offices under the provision of 
the Crown, in the Viceroyalty of PERU, begins with the 
Audiencia of Panama, in which district it says: 

"* * * We have to provide the post of Gov- 
ernor and Captain-General of the Province of Tierra 
Firme and President of the Royal Audiencia for eight 
years, which has a salary of four thousand five 
hundred ducats ; and that of Governor and Captain- 
General of the Province of Veragua, with one thousand 
pesos ensayados (assayed dollars) ; the Government of 
the Island of Santa Catalina, with two thousand 
pesos; and the Alcaldia mayor of San Felipe de 
Portobelo, with six hundred ducats." 

It then proceeds to speak of the other audiencias of 
this Viceroyalty, that is to say, those of Lima, Santa Fe, 
Charcas, Quito, Chile and Buenos Ayres. 

(77) 



78 

Under the denomination of New Spain, the law enumer- 
ates the offices under the provision of the King in the 
Audiencias of Santo Domingo, Mexico, Guadalajara and 
Guatemala, in respect to which it says; 

"In the district of our Royal Audiencia of Ciiaic- 
iiiala, the post of Governor and Captain-General and 
President of the Audiencia, for eight years, with a 
salary of five thousand ducats ; that of Governor and 
Captain-General of Valladolid de Comayagna, with 
two thousand pesos de minas (mined dollars) ; that 
of Governor and Captain-General of the Prov- 
ince OF COSTA RIC4, with two thousand ducats: 
that of Governor and Captain-General of the Province 
of Honduras, with one thousand pesos de minas; that 
of Governor of Nicaragua, with one thousand ducats; 
that of Soconusco, with six hundred pesos de minas, 
and the Alcaldias mayores of Verapaz, Chiapa, Nicoya, 
etc." 

This law offers an almost complete exposition of the 
organization of the Spanish Colonial Government, b}'- 
viceroy alties, audiencias, provincial governments and 
alcaldias mayores; it is at once a law of territorial division, 
and one making appropriations. 

As it states itself, the law was enacted by "Don Carlos 
II and the governing Queen, in this Recopilacion,'' in 
consultation with the Council and upon reports from the 
vSecretaryships of Peru and New Spain. It is, therefore, 
of great importance as being a faithful expression of the 
reality of the administrative division at the very date on 
which the Recopilacion was published (1680) and as 
affording a solution for the doubts that might arise from 
prior enactments in the interpretation of other laws of this 
Code. 



79 

(2) This law is a resultant of the history 01? Costa 
Rica, which always depended upon the Audi- 
Encia oe Guatemala. 

The Law i, title 2, book V, in specifically declaring 
that the Government and Captaincy-General of the Prov- 
ince of Costa Rica belonged to the Audiencia of Guatemala 
and Viceroyalty of Mexico, not only recognized the 
existence of that province, but it brought to the Rccopila- 
cion the result of its history, confirming and ratifying 
such jurisdictional dependency. 

(a) From the Creation of That Audiencia to ij6j. 

The importance that was given to primitive Veragua 
by the capitulacion of Felipe Gutierrez and the formation 
of the dukedom (1534), determined the creation, in 1535, 
of the Audiencia of Panama, or Tierra Firme, which was 
organized, in 1538, by segregating those territories from 
the Government of the Island of Espanola and all others 
discovered toward the south, to which it was impossible 
for said government to give further attention. The 
Audiencia of Panama was then the only one in existence 
for the government of the American continent, from the 
line marking the end of Mexico's territory down to the 
Strait of Magellan. 

By this Veragua depended at first upon the Government 
of Tierra Firme, as the Royal cedula of 1537 declared. 

But when that vast government was divided by the 
so-called "New Laws" of 1542, by the creation of the 
Viceroyalty of Peru and the Audiencia of the Confines 
(which was established in 1543 and afterwards called the 
Audiencia of Guatemala), Costa Rica formed a part of 
that audiencia, never to be separated therefrom through 
all the vicissitudes this audiencia underwent while de- 



80 

pendent upon the Viceroyalty of Mexico; whereas Tier r a 
Finne was made subordinate to the Viceroyalty of Peru 
by the Royal cedula of 1550, under which it remained 
definitively after various alterations. 

It cannot be successfully maintained that the Veragua 
which was called Cartago, or Costa Rica, passed, in 1550, 
with Tierre Firme to Peru, for it is clearly shown by the 
Royal cedula of incorporation that only Castilla del Oro 
was in question, and it has been shown that the former 
continued in the Audiencia of the Confines. It is enough 
to remember how the latter intervened in the affairs of 
Costa Rica and how the King addressed himself to it in 
everything relating to the conquest and government which 
he entrusted to Ortiz, Cavallon, Vazquez de Coronado, 
Perafan de Ribera and Artieda. The Royal cedula of 
August 9, 1 56 1 (Doc. No. 48), denying the claims of the 
Government of Tierra Firme with respect to the Province 
of Veragua and that of Costa Rica, should be especially 
borne in mind. 

The Audiencia of the Confines disappeared in 1563, 
having been transformed into another, called the Audi- 
encia of Panama, as result of the transfer to that city of 
the capital of the former. And in that Audiencia of 
Panama (which, however, must not be confused with the 
first of that name), Costa Rica continued, with other 
provinces that had pertained to the Audiencia of the 
Confines, from which Guatemala had been segregated and 
to which Tierra Firme was incorporated. The Audiencia 
of Guatemala having been re-established in 1568, and that 
of Panama having been dismembered, Costa Rica fol- 
lowed the former and Tierra Firme remained in the latter. 



81 



(b) Frcm its Re -establishment {1568) down to the Promul- 
gaticn of the Recopilacion {i860). 

The Audiencia of Panama objected to being deprived 
of the jurisdiction which had been segregated from it, 
and it became necessary for the King, by the Royal 
cedula of August 12, 1571 (Doc. No. 59), to order that 
it should not continue any longer to act in matters per- 
taining to that of Guatemala and to declare, by the 
Royal cedula of July 17, 1572 (Doc. No. 61), that the 
affairs of Nicaragua and Costa Rica belonged to the latter. 

The Audiencia of Guatemala continued, in fact, to 
occupy itself with the government of and the admin- 
istration of justice in Costa Rica, as it had done before 
its suppression. Thus we see it calling to account 
Perafan de Ribera, Diego de Artieda, Fernando de la 
Cueva, Ocon y Trillo and other governors; we see it 
taking measures concerning allotments of Indians and 
exemptions from tribute, and intervening in all the 
other affairs of that province, by virtue of its inherent 
powers, or by order of the King, until 1680, when the 
Recopilacion was published, to say nothing of those 
acts which are set forth with their dates in the defense of 
Costa Rica. 

The audiencia, however, had to refrain from appointing 
the Governors of Costa Rica, because the King reserved 
their appointment to himself, according to the Royal 
cedula of May 26, 1572 (Doc. No. 60), which he ad- 
dressed to that body; but it did name those officers ad 
interim, pending permanent appointments by the King, 
in the case of Alonso de Anguciana (1573), Velazquez 
Ramiro (1590), Gonzalo de Palma (1592), Gonzalo Vaz- 
quez de Coronado (1600), Arias Maldonado (1662), etc. 



82 

And, finally, evidence that Costa Rica depended upon 
the Audiencia of Guatemala, is found in the protracted 
proceedings arising out of the plan to aggregate it to 
the Audiencia of Panama. On vSeptember 25, 1609 
(Doc. No. 75), Philip III asked the Audiencia of Guate- 
mala whether it would be desirable to place the Prov- 
ince of Costa Rica, "which is under the jurisdiction of 
your Audiencia," in the district of that of Panama; 
Philip IV informs the President of the latter, on Octo- 
ber 24, 1623, that he is investigating the matter, and in 
1627 and 1628 (Doc. Nos. 235 and 236), he calls upon 
the Governor of Costa Rica for reports; and Carlos II, 
after having asked the Audiencia of Guatemala for 
further reports concerning the aggregation of the Province 
of Costa Rica to that of Panama, declares in Law i, title 
2, book V, of the Recopilacion, that the Government and 
Captaincy-General of Costa Rica shall form part of the 
Audiencia of Guatemala, dependent upon the Viceroyalty 
of New Spain (Mexico). 

The foregoing clearly demonstrates that, after mature 
reflection and in harmony with its history, the Province 
of Costa Rica was expressly recognized by the Recopi- 
lacion de Indias as such province and a dependency of the 
Audiencia of Guatemala. 



IV. 



INTERPRETATION OF LAW 9, TITLE 1, BOOK V, 
DECLARING THAT THE WHOLE OF THE PROVINCE 
OF VERAGUA IS UNDER THE GOVERNMENT OF 
TIERRA FIRME. 

(i) Thk Whole Province of Veragua Cannot be Re- 
ferred TO AS Being the Veragua of 1537. 

lyaw 9, title I, book V, of the Recopilacion de Indias 
(Doc. No. 135), begins by citing as its precedent the 
Royal cedula issued by the Emperor at Valladolid on 
March 2, 1537, which has for a caption : "Let the Province 
of Veragua belong to the Government of Tierra Firme;" 
and its text contains the single order: "Let the whole 
Province of Veragua belong to the government of Tierra 
Firme." 

This word "whole," which does not figure in the 
heading, and the above reference to the Royal cedula 
of 1537, constitute the principal basis of Colombia's 
argument in her effort to maintain that the Province 
of Veragua to which the Recopilacion de Indias refers 
as subordinated to the Audiencia of Panama of the 
Viceroyalty of Peru, comprised the whole of what was 
Veragua in the purview of that Royal cedula. In her 
argument Colombia seeks to make the law say, by its 
citation and its text, that it restores things to the state 
in which they were found in 1537, and therefore nullifies 
everything that was done subsequently to that date. 

We begin by making it clear that these citations of 
cedulas and pragmdticas which are seen at the heads or 
on the margins of the laws in the compilations, only serve 

(83) 



84 

to indicate the origin or antecedents of the text, they 
form no part of the text. They have, therefore, no virtue 
as precepts unless they are reproduced in the text, in which 
case their authority is revived. Still, they always supply 
the historical explanation of the respective laws, although 
not in every case as their commentaries, since they may 
be complete negations thereof. 

The Royal cedula of Valladolid, of March 2, 1537, is 
cited once at the beginning of this Law 9, title i, book 
V, relative to Veragua, and again at the beginning of 
Law 4, title 15, book II (Doc. No. 106), which deals 
with the Audiencia of Panama. Are there two cedulas 
of the same date, or only one? If two, then the one 
that is cited with reference to Veragua, could not be 
the one which Colombia defends with so much earnest- 
ness; if there is but one, then, since it does not speak 
of the Audiencia of Panama, the citation of Law 4 can 
be understood in no other sense than as the authority for 
the formation of that audiencia. 

It is impossible, therefore, to assert successfully that 
by the mere fact of the citation of the Royal cedula of 
March 2, 1537, by Law 9 it could re-enact that cedula 
and abrogate everything that had been commanded 
subsequently thereto. That law cited the cedula as the 
organic act of the Province of Veragua, just as another 
law cited it as a precedent of the Audiencia of Panama. 

Let it be observed, furthermore, that that invocation 
of this Royal cedula by Colombia for the purpose of 
showing that by virtue thereof the whole of Veragua 
became a single province and belonged to the Govern- 
ment of Tierra Firme, is from every point of view conira- 
prodMceniem. First, because this very Royal cedula 
establishes the division of Veragua into two parts, con- 



85 

firming the creation of the Dukedom of Veragua with 
its square of twenty-five leagues, and commanding that 
such lands as might be left after taking out these twenty- 
five leagues, should be subject to the Government of 
Tierra Firme, called Castilla del Oro. Second, because 
the dukedom granted to Don Luis Columbus by the 
Royal cedula of January 19, 1537, was expressly left 
subject to the jurisdiction of the Audiencia of the Island 
of Bspanola. Therefore, when the Province of Veragua 
was re-established in 1537, the re-establishment did not 
involve the entirety of that province, but only that part 
which was left after segregating the square of twenty-five 
leagues of the dukedom. 

In order to defend the integrity of that Province of 
Veragua which she has dreamed of as belonging to the 
Government of Tierra Firme, from Castilla del Oro 
as far as Cape Gracias a Dios, Colombia must begin 
by getting rid of the Royal cedula of 1537, and then 
rely upon the dispositions which have abrogated it. 

We have already seen how the primitive Veragua 
was broken up, by virtue of its historical evolution 
and the acts of the Sovereign, into three provinces, 
each distinct from and independent of the other; the 
Province of Veragua, properly so-called, and the only 
one that kept this name, that of Costa Rica, and that 
which began by calling itself Teguzgalpa. We have 
seen, also, how from the birth of the Audiencia of the 
Confines, or Guatemala, down to the time of the Recopi- 
lacion, inclusive, the Province of Costa Rica belonged to 
it and to the Viceroyalty of New Spain, and remained 
separated from the Government of Tierra Firme which 
depended upon the Viceroyalty of Peru. We deem it 
unnecessary to insist further upon these propositions after 
1607 — 7 



86 

the extended demonstration which we have already made 
of them. It will be sufficient to add this demonstration 
to the reasons stated, in order to establish conclusively 
the fact that Law 9, title 15, book V, cannot be interpreted 
in the sense of referring to the whole Province of 
Veragua as being the Veragua of 1537. 

(2) Nor is the hypothesis admissible that Veragua 
IS A Major and Costa Rica a Minor Province. 

Colombia defends herself in retreat, by referring the 
totality of the Province of Veragua as of the year 1560 
and seeking to construct the duality of the Governments 
of Veragua and Costa Rica, mentioned by the Recopila- 
cion, by distinguishing them as major and minor provinces. 

According to the opinion prepared by one of the eminent 
counsel, the Royal cedula of July 18, 1560 (Doc. No. 39), 
reveals the fact that out of ancient Veragua there had 
been formed two provinces, one a large one which kept 
the tradition and the name of Veragua, and the other a 
small one which was subject to the jurisdiction of Nica- 
ragua, this small one being the province called Costa Rica. 

In that very Royal cedula, the King specifically declares 
the division of Veragua into two parts; that entrusted 
to Francisco Vazquez, with which the Province of Veragua 
was constituted and of which he was soon after appointed 
Governor and Captain-General ; and the part confided by 
commission to Ortiz de Elgueta, which his successors con- 
quered and governed under the name of Costa Rica and 
which reached as far as the boundaries of the other. 

Not because it was indicated that the conquest of Costa 
Rica would be initiated on the side next to Nicoya, or be- 
cause Ortiz was Alcalde mayor of the latter, or because of 
the fact that governors appointed for Costa Rica were made 



87 

also governors of Nicaragua in order to facilitate the con- 
qviest, can it be maintained that Costa Rica was reduced to 
the "little scrap" of which the Memoranda of Colombia 
speak so disparagingly, or that Costa Rica can be confused 
with Nicoya or Nicaragua. In our opinion we have made 
sufficiently clear the manner in which the Province of 
Costa Rica was formed, from the commission given to 
Ortiz de Elgueta and transmitted to Cavallon, and it 
would seem to be unnecessary to return to that historical 
aspect. 

On the other hand, the idea of a distinction into major 
and minor provinces is not applicable, for according to 
Law I, title i, book V, of the Recopilacion de Indias (Doc. 
No. 131), the designation of major is only given to the 
districts of the audiencias, within which were found the 
minor ones, such as the governments, alcaldias mayores, 
etc., and Veragua never was an audiencia, neither was 
Costa Rica. 

But both were provinces, in the category of governments 
and captaincies-general, as they are expressly considered 
by Law i, title 2, book V, of the Recopilacion. And as 
the salaries are in proportion to the rank of the offices, 
and the latter with the character or importance of the 
provinces, let us look into the assignment of salaries made 
by this same law: Governor and Captain-General of the 
Province of Costa Rica, 2,000 ducats; Governor and 
Captain-General of the Province of Veragua, 1,000 pesos 
ensayados; Governor of Nicaragua, 1,000 ducats, and 
Alcalde mayor of Nicoya, 200 ducats. 

It will be noted that the salary of 2,000 ducats assigned 
to the Governor and Captain-General of Costa Rica is 
the same that was provided for that office by the Royal 
cedulas of 1573 and 1574, which constituted the capitula- 



88 

ii6)i and appointment of Diego de Artieda — a new fact, 
by the way, in favor of its efficacy. And if this salary 
be compared with the others mentioned, how can it be 
imagined that the Government and Captaincy-General 
of Costa Rica was of less importance than that of 
Veragua, or that it could have been made dependent upon, 
or, subordinated, to the mere Government of Nicaragua 
or the Alcaldia mayor of Nicoya? 

Nor does the whole of the Province of Veragua to which 
Law 9 alludes, constitute the whole of this supposed major 
province of 1560, with the exception of the "little scrap" 
{Ic petit lambeau) adhering to Nicoya or Nicaragua. 

(3) Explanation of this law, by making it refer to 

THE PROVINCE emanating FROM THE DUKEDOM. 

In our opinion Law 9, title i, book V, can only be 
interpreted by construing it as referring to the Province 
of Veragua into which the dukedom was converted, 
because this interpretation is based on fact, on history, 
on the reason for its being included in the Rccopilacion 
de Indias and on its harmony with other laws of the same. 

The only Province of Veragua in existence when the 
Rccopilacion was published, in 1680, was the one defini- 
tively constituted in 1560, proceeding from the suppressed 
ducal seignory, and differing from the remainder of the 
ancient Royal Veragua. This was called Costa Rica in 
the time of vSanchez de Badajoz (1539); Cartago and 
Costa Rica in the time of Diego Gutierrez (1540) ; Cartago 
or New Cartago and Costa Rica in that of Cavallon (1561), 
and Costa Rica only upon being constituted as a province 
on the occasion of the appointment of Governor of 
Vazquez de Coronado (1565). The province retained 



89 

that name after the separation therefrom of Teguzgalpa 
when the Government of Diego de Artieda was created 
(1573), and until it ceased to be a Spanish province; and 
it is not to be imagined that, upon the pubhcation of the 
Recopilacion de Indias, its laws could refer to any Prov- 
inces of Veragua and Costa Rica other than those that 
then existed, abandoning reality and going back over the 
course of history in order to confuse them with the primi- 
tive Veragua of the coast discovered by Columbus, or of 
the capitulaciones with Nicuesa (1508), or with FeHpe 
Gutierrez (1534). 

Colombia places a limit on this historical retrogression 
at March 2, 1537, and bases her arguments solely upon 
the citation made in Law 9, giving to those citations which 
only indicate origins a value they do not possess; but 
without noting that it was impossible to revive the totality 
of the old Veragua by the enactment of the Royal cedula 
of that date, since this Royal cedula sanctioned its division 
into two parts: Royal Veragua and Ducal Veragua. 

It is just because this division was sanctioned in the 
Royal cedula of March 2, 1537, that we can explain its 
citation in Law 9, understanding that this law mentions 
that cedula as a historico-legal precedent of the Province of 
Veragua, derived from the dukedom, which was treated 
in the text, just as it also cited that same cedula as an ante- 
cedent to the formation of the Audiencia of Panama or 
Tierra Firme. 

Let this citation be disregarded as being a mere histori- 
cal reference, and what remains to Colombia wherewith 
to maintain that the Recopilacion de Indias abrogated 
everything subsequent to said Royal cedula. The text of 
the law, far from enacting the Royal cedula, differs there- 



90 

from as regards the argument of Colombia, since it speaks 
of totality and not of division, as does that cedula. 

Why was such a text written into the Recopilacion de 
India sf For the purpose apparent in other similar cases — 
that of explaining the territorial division and settling the 
doubts that might be raised concerning the respective 
jurisdictions. 

Title I, book V, which treats of "the districts, division 
and aggregation of the governments," begins, in its Law i 
(Doc. No. 131), by laying down the principle that gov- 
ernors shall preserve the limits of their districts, continues 
with the explanation of the dependency in which certain 
audiencias are found in respect to the two viceroyalties, 
and then defines the dependency of certain governments 
with respect to the audiencias. 

Because of the fact that the Audiencia of Panama went 
through so many alterations, and was contiguous with 
the Viceroyalty of New Spain and with other audiencias of 
the Viceroyalty of Peru, it was the one to which the most 
attention was given, particularly with reference to its 
Province of Tierra Firme. 

Law 2 says (Doc. No. 132): "The Province of Tierra 
Firme belongs to the Government of Peru." And to the 
end that there might be no doubt remaining, by reason 
of its having figured as a part of the Audiencia of the 
Confines, Law 7 (Doc. No. 133) reproduces the Royal 
cedula of 1550, saying that "* * * the Province of 
Tierra Firme, called Castilla del Oro, shall belong to the 
Provinces of Peru and not to those of New Spain." 

Law 8 (Doc. No. 134) thereupon indicates the eastern 
limit on the north with the Audiencia of Santa Fe, to 
which the Province of Cartagena belonged, and declared 
that the back portion of the Gulf of Uraba belongs to 



91 

Tierra Firme. And finally, in order to fix the western 
limit and banish all doubt of the fact, that, according to 
Ivaw 7, the Viceroyalty of Peru and Audiencia of Panama 
should terminate with Castilla del Oro, I^aw 9 (Doc. No. 
135) provides: "* * * Let the whole Province of 
Veragua belong to the Government of Tierra Firme." 

This lyaw, then, forms a harmonious whole with these 
other laws of the same title, and responds to the same 
idea that they do. And it is in harmony also with Law i 
of title 2 (Doc. No. 136), which follows thereafter, and 
includes the Province of Costa Rica in the Audiencia of 
Guatemala and Viceroyalty of New Spain, in conformity 
with the resolution taken by Carlos II, when the Recopila- 
cion was published, after the long proceedings which arose 
out of the plan to include that province in the Audiencia of 
Panama. 

There cannot, then, be the slightest doubt that the 
Province of Veragua, to which Law 9 referred, was that 
which arose out of the dukedom, and this is even confirmed 
by the same citation of the Royal cedula of 1537, relative 
to the dukedom of which it was formed. 

But if this is the simple and clear explanation of Law 9, 
the heading of which says that the government of the 
Province of Veragua belongs to Tierra Firme, how is the 
placing of the word "whole" at the beginning of its text 
to be explained ? 

It may be redundancy, which is frequently made use 
of to give more force to expression and to leave a phrase 
more complete; but we think there were special reasons 
for saying "the whole Province of Veragua." 

The Law could not say "the whole Dukedom of Vera- 
gua," since it had been suppressed; neither could it refer 
to the boundaries of the latter, because they had not been 



92 

actually traced; nor were they in fact, the imaginary 
boundaries mathematically fixed by meridians and paral- 
lels. As to the contiguous provinces, they had been 
altered in one way or another, and there were also inter- 
mediate spaces which had been the object of disputes, and 
others which at any moment could give rise to contro- 
versy. It is enough to temember that from the meridian 
of the Belen River, the eastern boundary of the dukedom, 
as far as Castilla del Oro, which was fixed as the limit of 
the government of Felipe Gutierrez (1524), there were 
territories which were not included in the ducal demarca- 
tion; that the demarcation of Ortiz de Elgueta, Cavallon 
and Vazquez de Coronado could lead to the belief that the 
boundaries of their government reached as far as the line 
between Nombre de Dios and Panama (1559-1565); and 
that the demarcation of Artieda (1573) fixed the limit of 
Costa Rica "as far as the Province of Veragua," making it 
comprise the Bocas del Drago on the north and the Valleys 
of Chiriqui on the south. 

So that even if the Province of Veragua was formed with 
the territory of the Dukedom of Veragua, it did not coin- 
cide with its mathematical limits and it contained parts 
which were not within their geometrical configuration. 
And it was in our judgemnt to avoid doubt about the 
former dukedom, as well as to confirm the solutions to 
doubts which had been raised regarding the existence of the 
province, that the law said: "The whole of the Province 
of Veragua * * *," which was equivalent to saying, 
"all that may be or is the Province of Veragua," thus 
sanctioning its existence with the li'hole extension that it 
then had. 



93 

(4) Case of vSupposed Contradiction of This IvAw 
With Others. 

The result of the foregoing explanation is that Law 9, 
title I , book V, is in perfect harmony with the other laws 
of the Rccopilacion dc Indias; but if it be still insisted that 
this law resuscitated the ancient Veragua by re-enacting 
the Royal cedula of 1537 and abrogating all provisions 
subsequent thereto, under which supposition that law 
would be found to be in contradiction to others of the laws 
mentioned, we would suggest the following to show how 
this contradiction might be settled. 

It is not unusual in the compilations to find laws which 
are contradictory, because they have been collected from 
different periods without due attention always to compar- 
ing them, or because of the lack of antecedents essential to 
their proper interpretation. So that, when it is sought 
to settle conflicts between laws or parts of a law in a certain 
compilation, which were originally enacted at different 
dates, failing any other solution, it may be taken as a rule 
that the earlier law shall be considered as amended or 
abrogated by the later one, as the case may be. 

Following this criterion, and supposing that Law 9, 
title I, book V, could have resuscitated the Government 
of Tierra Firme of 1537 and included therein all Vera- 
gua, ducal and not ducal, that law must be considered as 
abrogated by Taw 7 of the same title; this is the Royal 
cedula of 1550, according to which only Castilla del Oro 
was incorporated into the Viceroyalty of Peru, and all 
of Veragua was left in the Audiencia of the Confines and 
Viceroyalty of New Spain. And although the effort is 
made to negative the existence of the Province of Costa 
Rica by pointing out the omission of its name in Taw 6, 
title 15 of book II (Doc. No. 107), and by saying that that 



94 

law was enacted by Philip IV, the reply is instantly forth- 
coming that the law was modified by his successor, Carlos 
II, who decreed Law i, title 2, book V (Doc. No. 136), 
which included the Government and Captaincy-General 
of the Province of Costa Rica in the Audiencia of Guate • 
mala and Viceroyalty of New Spain. 



V. 

VALIDITY OF THE ROYAL CEDULAS, WHICH ARE 
DEMARCATORY ACCORDING TO THE RECOPN 
LACION. 

(i) Principles Estabushed by the RecopiIvAcion in 
Regard to the Validity of the Royal Ce;dulas 
Prior and Subsequent Thereto. 

Counsel for Columbia assume that the rights of Costa 
Rica are supported only by Royal cedulas, and then deny 
those cedulas possess any legal force, on the ground that 
the Recopilacion de Indias rendered them wholly innocuous. 

But it is not a fact, as we have already indicated in 
speaking of the Recopilacion in general, that the latter 
abrogated all the prior dispositions. The Royal cedula 
of May 1 8, 1680, which authorized the publication of that 
code and prefaced it, says : 

"* * * leaving in force and effect the Cedulas 
and Ordinances given to our Royal Audiencias, in so 
far as they are not contrary to the Laws herein." 

I^aw I, title I, book II (Doc. No. 92) provides that 
whenever the necessity may arise for making new laws 
reports shall be made to the Council of the Indies and 
it declares that the ordinances enacted for cities and 
communities as well as those made for the welfare of the 
Indians and for good administration, shall continue 
without alteration, provided they be not contrary to the 
laws. And Law 2, of the same title and book (Doc. No. 
93), directs that in matters not covered by the laws of the 
Recopilacion "or Cedulas, Provisiones or Ordinances 
issued for the Indies and not revoked, or by those which 

(95) 



96 

are promulgated by our order," the laws of Castile shall 
be enforced. 

By Law 2, title 2, book II (Doc. No. 94), the Council 
of the Indies is given supreme jurisdiction of all the 
western Indies, and empowered it to "make, with our 
advice, the general and special Laws, Pragmatics, Ordi- 
nances and Provisiones * * *;" and the Council is 
further instructed that those "* * * *pro visions and 
commands shall be in everything and by everybody com- 
plied with and obeyed in all places." 

In this wav the Rccopilacion dc ludias laid down these 
principles: First, that Royal cedulas which are not in 
contradiction to its laws shall continue in force; and second 
that all Royal cedulas thereafter issued should attain to the 
dignity of Laws, if enacted by the Council of the Indies, 
by and with the advice of the King. 

2. Legality of Territorial Division and the Bound- 
aries OF Districts. 

This is perfectly well settled by two laws decreed by 
the very authors of the Recopilacion dc Indias. 

Law I, title 15, book II, of Philip IV (Doc. Xo. 105), 
after explaining how all the discoveries of the Indies 
were divided into twelve audiencias, the districts of which 
were subdivided into governments, corregimicntos and 
alcaldias viayorcs, which were subordinate to those audi- 
encias, and "* * * all to our Supreme Council of the 
Indies, which represents our Royal Person," says: 

"* * * We estabHsh and command, that now 
and until We otherwise order, the said twelve Audien- 
cias shall be retained, and that within the district 
of each one the Governments, Corregimientos and 



97 

Alcaldias May ores which they now have shall he pre- 
served, and that no change he made therein, without 
our express order or that of our said Council." 

Then follow the laws making the demarcation of audien- 
cias. 

Law I, title 15, book II, of Phihp IV (Doc. No. 105), 
after setting forth the advantages of the differentiation 
of the districts and territories, says : 

"We order and command the Viceroys, Audiencias, 
Governors, Corregidores and Alcaldes may ores to keep 
and observe the limits of their jurisdictions, as they 
may he fixed hy the Laws of this book, the Titles of their 
oflfices, the Provisiones of the superior Government of 
the provinces, or by use and custom legitimately intro- 
duced." 

Then follow the laws designating the districts of various 
governments, among which are found those of the Audien- 
cia of Panama. 

So, then, the Recopilacion de Indias recognized the 
existing legality of the demarcations at the moment it 
was published; and it not only recognized it, but it con- 
firmed it, in so far as it was not in contradiction with its 
laws, and even prohibited any change therein without 
express order of the King or of the Council of the Indies. 

These provisions relating to territorial division were 
in accord with the general provisions concerning the value 
of Royal cedulas prior and subsequent to the Recopilacion, 
and they all sanction the vaHdity of the Royal cedulas 
that estabhshed boundaries. Enactments prior to the 
Recopilacion, continued in force not only by reason of being 
Royal cedulas which did not contradict that code, but 
because they established the status quo of territorial divi- 



98 

sioii; those that were issued afterwards were required to 
be by the express order of the King or the Council of the 
Indies, in order to modify the demarcations existing in 
1680. 

The only condition that qualified the efficacy of the 
Royal cedulas demarcatory of boundaries, and determin- 
ing the legal status of 1680, was that they should not be 
in contradiction to what was provided by the laws con- 
tained in the Rccopilacioii. But as these laws only indi- 
cated in a general way the boundaries of the audiencias 
and solved various doubts concerning the inclusion of 
certain provinces therein, the Royal demarcatorv cedulas 
which specified those boundaries and indicated those of the 
governments — without being opposed to the general 
demarcation — beside being valid, had the importance of 
being complementary to the Recopilacion itself. 

(3) Special coistsideration of the capitulackjnes. 

The Royal cedulas approving the capitulacioncs for the 
discovery and settlement of territories, being Royal 
cedulas which were not opposed to the laws of the Recopila- 
cion, and having produced the legal status of the demarca- 
tions, unite the conditions requisite to their validity and 
efficacy in the matter of territorial division ; they disregard 
the personal aspect of those capitulacioncs and consider 
them in their character as demarcatory orders. But 
counsel for Colombia only see in them a contract, of no 
consequence in public law; we are therefore impelled to 
a special consideration of the subject. 

(a) Juridical Character of the Capitulacioncs. 

Counsel for Colombia say: 

"The jurisdictional demarcations, the determina- 
tion of territories submitted to Viceroys, Governors 



99 

or Audiencias, were never made by means of capitu- 
laciones or contracts between the State and private 
individuals, but by Royal cedulas, Royal orders, acts 
of Public Authority and of the sovereignty of a 
unilateral character, such as the exercise of dominion 
over the territory of the Nation." 

And, generalizing the question, they add : 

"It is a principle of Public Law, inherent in the 
very essence of the sovereignty of the State, that 
the territorial division shall be a matter submitted 
directly to the decision of the sovereign. When the 
sovereignty is exercised over the national territory, 
it is manifested by acts of Public Authority, in con- 
formity with the constitution of each State * * *, 
but to no one acquainted with the law would it occur 
that the concessions of the State to its subjects for 
the exploitation of territories or regions, their culti- 
vation or their administration under this or that form, 
implied changes in the political and civil jurisdiction." 

In the first place, it may be said, in reply to these 
assertions, that a capitulacion presents two aspects: One 
of personal interest, that of the individual in whose favor 
it was granted, and the other one of public interest, that 
of the discovery, the colonization and administration of 
the territory designated — a duality in aspect which also 
characterized the titles of appointment to governorships. 
The personal aspect disappeared with the individual or 
the one who held the granted right; the public aspect 
persisted, the territorial entity being left with the boun- 
daries imposed upon the contracting party or governor, 
as long as these limits were not changed by any subsequent 
provision. 

Considering the capitulacion as a compact, it was in 
effect a bilateral act, which produced reciprocal obliga- 



100 

tioiis between an individual and the Crown. But prior 
to the contract and above its capacity as a contract, it 
had the character of a unilateral act of sovereignty, since 
by making use of it the Monarch provided this mode of 
discovering, colonizing, and administering a certain terri- 
tory that he marked out, approved the capitulacion by 
Royal cedula, and when its term ended, he appointed 
within that demarcation another person to continue its 
administration. Thus were formed the different territorial 
demarcations which, under the names of governments, 
corregimicutos and alcaldias, went to fill out or complete 
the general demarcations of the audiencias, under a 
regime of territorial division established by the Sovereign. 
The boundaries prescribed in the capitulaciones were the 
boundaries of governments, and the boundaries of the 
governments were respected and confirmed by the Reco pi- 
lac ion. 

Even considering the capitulaciones as contracts, they 
can never be compared with those of private law; they 
might come under the category of contracts for public 
works and services or of administrative concessions. It 
is by the use of its sovereignty, and in no sense by abdicat- 
ing it, that the State undertakes in this manner to per- 
form services and works or to utilize the public domain; 
and in doing so, it imposes as conditions those which 
belong to the nature of the concession, work or service. 
The boundaries of the land designated to the contracting 
party or the concessionaire subsist for the State as long 
as it does not modify them. Who doubts, for example, 
when a railway line granted to a corporation reverts to 
the State, that it will have the same delimitation that it 
had previously? 



101 

Neither can there be any successful comparison be- 
tween capitulaciones and such administrative acts; these 
taken altogether constitute a system of colonization and 
government which Spain employed in her exploration, 
settlement, pacification and government of those vast 
territories — a system responding to needs that are not 
felt in countries completely formed to which a law of 
territorial division is given. 

The Recopilacidn de Indias recognized and confirmed 
the result of this system which had been employed, that 
is to say, the status quo of the demarcations that had 
been made at the time it was published. Far from dis- 
regarding the capitulaciones it takes them up especially 
in its book IV, and gives to them the characteristics of 
a most singular institution of Public Law, based on the 
sovereignt}^. 

(b) The Capitulaciones in the Light of Book IV of the 
Recopilacidn . 

Title I, of book IV treats of "the discoveries" in 
general, and lays down the principle that no discovery 
or settlement may be made at the expense of the King, 
unless the latter expressly authorizes it (I^aw 17; Doc. 
No. 115). 

It provides how the discoveries are to be granted; no 
new grants were to be made unless the prior ones should 
have been carried out and unless the King should be 
consulted; those to whom the right to make such dis- 
coveries had been granted were to qualify as men in whom 
reliance could be placed; the contracting parties were to 
be required to observe the laws and instructions, to give 
an account of their work and to keep within the boun- 
daries indicated; in the event of any doubt or question 
1607—8 



102 

concerning tJic bonndaries established by the capiiidaciones 
they were to be determined by the respective audiencia, 
and in case two audiencias should be interested in the 
same matter and fail to agree, then the matter was to be 
determined by the Council of the Indies (Laws i, 2, 4, 11 
and 14; Doc. Nos. 108, 109, no, 113 and 114). 

It directs that in all capititlaciones the word "conquest" 
should be omitted and that "pacification and settlement" 
be used instead (Law 6; Doc. No. iii), and authorizes 
the explorers to give names to the territories, rivers and 
mountains they might discover and to the cities they 
might establish (Law 8; Doc. No. 112). 

Title 2 concerns itself with discoveries by sea. It 
requires special permission to undertake them (Law i ; 
Doc. No. 117); it imposes the condition of providing at 
least two ships (Law 2; Doc. No. 118); and cautions the 
explorer that in making a landing upon any territory he 
must take possession in the name of the King (Law 1 1 ; 
Doc. No. 119). 

Title 3 treats of discoveries by land. It directs that 
an inquest be taken before making the capititlaciones 
(Law i; Doc. No. 120) and fixes the powers of those 
who enter into them. Among these are the power to 
appoint judges in the territory delimited, which includes 
the right to dismiss therefrom those who were already 
there, the power to divide this territory into districts, to 
appoint alcaldes therein, to make ordinances for its proper 
administration, etc. (Laws 13, 16 and 17; Doc. Nos. 123, 
125 and 126). 

Both in this title, and in the three that follow, which 
speak of the pacifications, of the settlements, and of the 
explorers, pacificators and settlers, various rights are 
stated as pertaining to the holders of capitulaciones, such 



103 

as the erection of forts, the estabhshment of cities, the 
exercise of jurisdiction during their Hves and its trans- 
mission to their heirs, the holding of the title of alcalde 
mayor, if their territory borders with that of viceroys or 
audiencias, and even that of Marquis if it were an 
Adelantado. 

The Crown imposed obligations and restrictions upon 
them in connection with the settlement and pacification 
of the country. I^aw 8, title 4 (Doc. No. 1 29) , for example, 
prohibited the discoverer from making war on the Indians 
unless absolutely necessary, or doing any other harm or 
injury, or taking anything from them without payment 
therefor. 

All of this shows very clearly the very special nature 
of the capitulaciones, which were a real institution of public 
law, under the shelter of which were formed the provinces 
and their districts. The boundaries fixed by the Council 
of the Indies in the capitulaciones granted by the King 
and placed under the protection of the audiencias, were 
also, therefore, boundaries of public law. 

I^aw 7, title 7 (Doc. No. 130), provides that "* * * 
the district and territory which may be granted by capitu- 
lacion for settlement," shall be allotted by first holding 
out the town plots, commons and pasture lands for the 
public, and then separating the remainder into four parts, 
one for the founder and the other three parts for equal 
division among the settlers. The demarcation thus made, 
it created rights in favor of the settlement which were not 
extinguished with the disappearance of the founder. 

And, finally, the Recopilacion declared the capitulaciones 
to be in force provided they were not opposed to it (Law 
18, title I, book IV; Doc. No. 116), as follows: 



104 

"We order and command that all discoveries and 
pacifications, and all capitulacioncs and writings which 
may have been made concerning them, are to be 
suspended if they are or may be in contravention of 
the Laws of this book; and that in all which may be 
made these Laws shall be observed and executed, 
without exceeding in whole or in part." 

(c) Capitulaciones Originating tJic Provinces of Veragua and 

Costa Rica. 

By virtue of such capitiilaciones the Provinces of 
Veragua and Costa Rica began to take legal form accord- 
ing to the general system of that period. 

The Dukedom of Veragua had its birth, in 1536, under 
the arbitral settlement of a suit growing out of the capi- 
tidaciones made with Christopher Columbus in 1492. 
When the dukedom was suppressed by agreement of Don 
Luis Columbus with the Council of the Indies, in 1556, 
its territory was granted by capitulacion to Francisco 
Vazquez, who was thereunto authorized by the Royal 
cedula of 1557; and Philip II erected it into a province 
when he appointed this same Francisco Vazquez as Gov- 
ernor and Captain-General by Royal cedula of August 
20, 1560. 

Ancient Veragua having been divided into two parts 
by the Royal cedula of March 2, 1537, in consequence 
of the creation of the dukedom, the King disposed of 
the remaining part by giving it to Diego Gutierrez in 
the capilnlacion and Royal cedula of November 29, 
1540. That instrument fixed as the eastern boundary 
the meridian that passed along the end of the twenty- 
five leagues of the dukedom, starting from the meridian 
of the Belen River. If Colombia denies this Royal 



105 

cedula and goes back to that of 1537, she must recog- 
nize that the remaining part to which this latter referred 
was the demarcation given by capitulacion to Fehpe Guti- 
errez in 1534 and then existing; according to this demar- 
cation the territory that later was to become Costa Rica, 
reached as far as the limits of Castilla del Oro, which 
had been given to Pedrarias Davila and Pedro de los 
Rios, subject to the rights of Columbus. 

The personal rights of Diego Gutierrez in the capitu- 
lacion of 1540 having been extinguished, the exploration 
and settlement of Costa Rica was made by order of the 
King without capitulaciones, but under the commission 
given to Ortiz de Elgueta ; and the province of that name 
was constituted in the form of a government and captaincy- 
general when Vazquez de Coronado was appointed to fill 
those offices in 1565. The capitulacion of Artieda, of 
December i, 1573, separated the northern part, w4th 
which the Province of Teguzgalpa was formed later on 
by the capitulacion of Diego Lopez of 1576, and it left the 
Province of Costa Rica definitively bounded. 

It is important to note that the capitulaciones of Diego 
Gutierrez (1540) and of Artieda (1573) were approved 
directly by the King in Royal cedulas and by accord with 
the Council of the Indies, thus combining all the requisites 
which the Recopilacidn de Indias demands for their 
validity and continuance in force. 

It cannot be said that these capitulaciones expired 
with the death of the persons with whom they were 
made, for the demarcations made by the King always 
remained and the boundaries fixed by them were those 
that limited the jurisdiction of the governors who were 
afterwards appointed, those preserved by the superior 
authorities in maintaining such governors in their rights, 



106 

and those sanctioned by use and custom — those in fact 
which the Recopilacion commands to be respected and 
kept, as stated in^Law i, title i, book V (Doc. No. 131). 

For the reasons above stated, in all the boundary ques- 
tions of the Spanish-American Republics, the value of 
capitulaciones has been recognized as decisive of territorial 
divisions. The extinction of the rights of the holders 
produced no effects on those divisions. This has been 
demonstrated in the controversies and litigations between 
Colombia and Venezuela, Peru and Bolivia, Peru and Ecua- 
dor, Chile and Argentina, Argentina and Brazil, etc. 

In the boundary question between Honduras and 
Nicaragua, which was decided by the King of Spain in 
1906, the very same counsel who defended Colombia against 
Costa Rica not only recognized the value of capitulaciones, 
but they invoked those here cited in support of the rights 
they were then defending, as we have already stated; 
vSeiior Maura for instance, said, in defense of Nicaragua, 
that the Diego Gutierrez capitulacion of 1540 defined the 
eastern hmit of Honduras and that the Artieda capilu- 
lacion of 1573 clearly distinguished Costa Rica from 
Nicaragua; and Senor Silvela, in defending Honduras, 
asserted that this capitulacion with Artieda de;finitive;i.y 

FIXED THE LIMITS OF CoSTA RiCA. 

(4) Unilateral Acts of the Crown in the Unques- 
tionable Exercise of Sovereignty, and Titles 
of the Governors. Final Deductions. 

Although the Royal cedulas approving the capitu- 
laciones were acts of pure sovereignty, as we have demon- 
strated, it is important to remember that the Crown 
constituted the Provinces of Veragua and Costa Rica by 
unilateral acts of unquestionable sovereign power. 



107 

Philip II, by himself and without contracting with 
anyone, marked out the Province of Costa Rica in the 
directions given by Royal cedulas of December 13, 1559, 
and February 23, 1560, to Ortiz de Blgueta, who was to 
explore, settle and govern it; and he transmitted this 
commission to the Licentiate Cavallon in the same terms 
by Royal cedula of February 28, 1561, in which he 
charged the Audiencia of the Confines that, if Cavallon 
did not accept, it should appoint a judge or some other 
person to carry it out. The boundaries given to Ortiz de 
Blgueta and to Cavallon were the same as those stated in 
-the appointment of Vazquez de Coronado as Governor of 
Costa Rica by Royal cedula of August 7, 1565. 

Colombia will not be able to deny that these Royal 
cedulas were unilateral acts of the Crown, expressions 
of the purest sovereignty; indeed, were they preferred 
to the capiUdacion of Artieda it becomes evident that 
Costa Rica could be understood as reaching as far as 
the cities of Nombre de Dios and Panama. 

The Royal cedulas in which audiencias were created 
and suppressed, in which Costa Rica was declared to 
be included in the Audiencia of the Confines, or Guate- 
mala, and by which, through that audiencia, questions 
were determined relating to its administration — all these 
were also acts involving the unquestionable exercise of 
sovereignty; and particularly in that category were the 
cedulas making appointments of governors. 

The titles issued to governors are of very great impor- 
tance in this connection, and for two reasons: as Royal 
cedulas confirmatory of the demarcations made in the 
capitulaciones, and as means of proof expressly recognized 
by the Recopilacion in the matter of boundaries. 



108 

Let us remember that under Law i,- title i, book V, 
the audiencias, governors and other authorities must 
keep the boundaries of their jurisdictions, "as they may 
be fixed by Laws of this Book, the Titles of their offices, 
etc.," the Titles of the Offiees taking therefore the first place 
as matter of proof, immediately after the laws; and we 
will now enumerate the titles of the offices of the Gov- 
ernment of Costa Rica, from the time that the distinction 
was initiated in Veragua (Royal and Ducal), confining 
ourselves simply to the principal ones and their enumera- 
tion only, since their history has been fully written. 

1. Title of Governor granted to Felipe Gutierrez by 
Royal cedula of February 6, 1535 (Doc. No. 9) in con- 
sequence of the approval of his eapitiilacion of 1534. By 
that instrument there was placed under his administra- 
tion the whole territory, subject to the rights of Columbus, 
as far as Castilla del Oro, the boundaries of which were 
those assigned to Pedrarias Davila and Pedro de los Rios. 

2. Title of Governor granted to Diego Gutierrez, by 
Royal cedula of December 16, 1540 (Doc. No. 19), in 
consequence of the approval of his eapitulacion of No- 
vember 29, giving him the administration of the Province 
of Cartago, from the Rio Grande west of Cape Camaron 
as far as the limit of the dukedom, where terminated the 
twenty-five leagues granted to Columbus, starting from 
the meridian of the Belen River. 

3. Royal cedula of January 11, 1541 (Doc. No. 20), 
directing that these limits be respected and observed 
by all the governors of the Indies. 

4. Title of Governor granted to Juan Vazquez de Coro- 
nado, by Royal cedula of April 8, 1565 (Doc. No. 52),- 
without eapitulacion, giving to him the administration 



109 

of the Province and territory of Costa Rica, with all its 
jurisdiction. 

5. Royal Cedula of August 7, 1565 (Doc. No. 54), 
directed to the same Vazquez de Coronado, Governor 
and Adelantado of the Province of Costa Rica, declaring 
that this province comprised the territory from Honduras 
and Nicaragua " * * * on the side of the cities of 
Nombre de Dios and Panama, between the South Sea 
and that of the North," in the same terms in which the 
demarcation assigned to Ortiz de Blgueta was fixed. 

6. Title of Governor granted to Perafan de Ribera, by 
Royal cedula of July 19, 1566 (Doc. No. 56), without capi- 
tulacion, giving to him the administration of the Province 
of Costa Rica, "* * * in the matters which it has 
been customary for the Governors who have been up to 
this time in the said province to conduct." 

7. Title of Governor and Captain-General granted to 
Diego de Artieda, by Royal cedula of February 18, 1574 
(Doc. No. 63), in conformity with that of December i, 
1573, approving his capitulacion and giving to him the 
Government and Captaincy-General of the Province of 
Costa Rica, which it says extends from the Desaguadero 
as far as the Province of Veragua, including in Costa Rica 
the Valleys of Chiriqui on the south and the Bocas del 
Drago on the north. The latter denomination embraced 
the Bay of Almirante and the Lagoon of Chiriqui, in which 
region he was directed to establish a city; this he did, 
giving to the city the name of Artieda. 

8. Royal cedula of December 29, 1593 (Doc. No. 70), 
giving the government of the Province of Costa Rica, 
with capitulacion, to Don Fernando de la Cueva " * * * 
as it was held by Diego de Artieda Chirino," 



no 

The province having been bounded definitively by the 
Royal cedulas of 1573 and 1574, the appointments of 
governors subsequent to Artieda and Cueva were conferred 
with like jurisdiction. We have seen how the Audiencia 
of Guatemala filled those offices ad interim and now we will 
add that the Crown continued to exercise its rights to 
appoint their proprietors. 

In fact, after Cueva, the Crown did appoint, as Govern- 
ors and Captains-General of this Province of Costa Rica, 
Juan de Ocon y Trillo, in 1603 ; Juan de Mendoza, in 1612 ; 
Alonso del Castillo, in 161 8; Juan de Echauz, in 1622, 
Juan de Villalta, in 1629; Gregorio de Sandoval, in 1634; 
Juan de Chaves, in 1644; Juan Fernandez Salinas, in 1650; 
Andres Arias Maldonado, in 1655; Juan Lopez de la Flor, 
in 1663; Juan Francisco Saenz, in 1673, and Miguel Gomez 
de Lara, on August 7, 1680 — that is, two months after the 
Royal cedula which sanctioned the Recopilacion (May 18, 
1680). 

In the titles of these appointments no boundaries were 
assigned to these Governors and Captains-General of 
Costa Rica that were distinct from those established by the 
demarcation of Artieda. And if the Monarch who pub- 
lished the Recopilacion de Indias recognized in that code 
the existence of the Government and Captaincy-General 
of Costa Rica and directed that the boundaries stated in 
the Titles of the Governors must be respected, is the same 
one who appointed Governors and Captains-General of 
Costa Rica (Saenz and Lara), before and after sanctioning 
it, without modifying the traditional boundaries clearly 
established in prior titles, counsel for Colombia show much 
temerity in disregarding" not only the boundaries men- 
tioned, but the very existence even of that province. 



Ill 

Let us conclude, then, by aflfirming that the Recopilacion 
de Indias respected and confirmed the existence of the 
Province of Costa Rica, with the demarcation established 
by the Royal cedulas of December i, 1573, and February 

18, 1574- 



PART THIRD. 



COSTA RICA CONTINUED IN THE SAME LEGAL 
STATUS OF DIFFERENTIATION FROM VERAGUA 
FROM THE RECOPILACION DOWN TO THE INDE= 
PENDENCE. 



I. FROM THE RECOPILACION (1680) TO 1803. 

(i) Creation of the Viceroyalty of Santa Fe 
AND Vicissitudes of the Audiencia of 
Panama, Until its Suppression (171 7 to 

1751)- 
(2) The Province of Veragua Passed into Depend- 
ence Upon the Viceroyalty and Audien- 
cia OF Santa Fe. Costa Rica Continued 
Dependent upon the Audiencia of Guate- 
mala OF THE Viceroyalty of Mexico. 
(3) The Crown Continued to Appoint Governors 
AND Captains-General of the Province of 
Costa Rica. 
(4.) Boundaries of the Viceroyalty of Santa Fe 
With Costa Rica as a Province of the 
Audiencia of Guatemala and Bordering 
Thereon : 

(a) Antecedents; 

(b) Description of the Kingdom of Tierra Firme 

by the Comandante General of Panama, Don 
Antonio Giiill, in 1^60; 

(c) Description oj the Viceroyalty of Santa Fe by 

its Viceroy, the Marquis dc la Vega de 
Armijo, in lyjz; 

(112) 



113 

(d) Report of the Governor of Veragua, Don Felix 

Francisco Bejarano, in lyjS- 

(e) Description of the Viceroy alty of Santa Fe, of 

Tierra Firme and of Veragua, by the Mis- 
sionary Sobrevicla, in 1796: 

(f) Official Communication of the Governor of the 

Islands of San Andres, in 1802; and Resume. 

II. THE ROYAL ORDER OFNOVEMBER 20, 1803, REFER= 

RING TO THE MOSQUITO COAST. 

1. Antecedents, Formation and Text of the 

Order. 

2. That Order was not Applicable to Costa Rica, 

Because What Was Called the Mos- 
quito Coast Ended Before that Prov- 
ince Began. 

3. Military and Transitory Character of this 

Royal Order. 

4. The Order Could Not Change the Laws of 

Territorial Division. 

5. The Inefficacy and Abrogations of this Royal 

Order. 

III. LAST YEARS OF THE SPANISH SOVEREIGNTY. 

I . First Period of the Constitutional Regime in 
Spain ; 

(a) General Organic Provisions; 

(b) Continuation of the Dependency of the Northern 

Coast of Costa Rica upon the Government of 
that Province; 



114 

(c) Description of the Province of Costa Rica in 
the proposal made by its Deputy in the Cortes 
for the Creation of a Bishopric. 

2. Absolute Government of Fernando VII. 

3. Second Constitutional Period. 

IV. THE INDEPENDENCE AND THE "UTI POSSIDETIS." 

1. Independence of the Provinces of Guatemala 

and of New Granada. 

2. The Principle of Colonial "Uti Possidetis." 

3. Application of This Principle. 



I. 



FROM THE RECOPILACION (1680) TO 1803. 

I . Creation of the Viceroyalty of Santa Fe and Vicis- 
situdes OF THE AudIENCIA OF PANAMA, UnTIE ITS 

Suppression (1717 to 1751). 

In the XVIIIth century the territorial division estab- 
hshed by the Recopilacion de Indias was modified, by the 
creation of two more viceroy alties, that of Santa Fe and 
that of Buenos Aires. 

The Viceroyalty of Santa Fe, or of New Granada, was 
created, by decree of the King and Royal cedula of May 
27, 1717 (Doc. No. 155), recasting in the Audiencia of 
Santa Fe the Audiencias of Panama and Quito, all of w^hich 
depended upon the Viceroyalty of Peru, and adding the 
Comandancia of Caracas, which belonged to the Audiencia 
of Santo Domingo. There was placed at the head of this 
new circumscription a viceroy, who was to reside in the city 
of vSanta Fe and who should be Governor, Captain-General 
and President of the Audiencia of that name, '* * * in 
the same manner as are those of Peru and New Spain, and 
with the same powers." 

This viceroyalty, not having produced the results 
expected of it, was suppressed a few 3^ears later, in 1723, 
and the Audiencia of Panama, which had been suppressed 
when it was formed, was re-established in the latter year. 

But in view of the claims of New Granada, and of what 
was proposed by the Council of the Indies, the King pro- 
vided for the re-establishment of the viceroyalty, by Royal 

(115) 



116 

cedula of August 20, 1739 (Doc. No. 163), which reads as 
follows : 

"I have resolved to estabhsh anew the Vice- 
royalty of the New Kingdom of Granada and have 
appointed therefor the Lieutenant-Gencral Don 
vSebastian de Eslava * * *, being also President 
of my Royal Audiencia of the city of Santa Fe in 
said New Kingdom of Granada and Governor and 
Captain-General of the jurisdiction thereof and 
provinces that have been added thereto, which are: 
that of Panama with the territory of its Captaincy- 
General and Audiencia, that is to sa}^ those of Porlo- 
bclo, Veragua and Darieu; those of Choco, Kingdom 
of Quito, Popayan and Guayaquil * * =>= ^he 
Audiencias of Panama and Quito to continue and sub- 
sist as they are, with the same subordination and 
dependency from this Viceroy as the others have 
that are subordinated to the Viceroyalties of Peru and 
.Mexico, with regard to their respective Viceroys." 

Within the new viceroyalty and under the dependenc}' 
of its viceroy, he established three Comaudancias geuerales: 
those of Panama, Cartagena and Caracas. 

The Audiencia of Panama, then, passed from the Vice- 
royalty of Peru to that of Santa Fe. But it was suppressed 
later on, by the Royal cedula of July 17, 1751 (Doc. No. 
168), because of the small amount of business it was 
called upon to transact, the many conflicts it produced 
and the decadence of its provinces. The King directed 
that all the political and military matters of the city of 
Panama and Kingdom of Tierra Firme should be left in 
charge of a governor and lieutenant-general "upon the 
same footing as the Governors of Cartagena and Veracruz 
serve," under the jurisdiction of the Audiencia of Santa Fe. 



ii7 

(2) The Province of Veragua passed into depend- 
ence UPON THE ViCEROYAIvTY AND AUDIENCIA OE 

Santa Fe. Costa Rica continued dependent 
upon the audiencia of guatemala of the 

ViCEROYAIvTY OF MEXICO. 

The Viceroyalty of Santa Fe having been created and 
the Audiencia of Panama suppressed, the Province of 
Veragua passed, together with that of Tierra Firme, 
Portobelo and Darien, as the said Royal cedula of 1739 
expressly states, into dependence upon the Viceroyalty 
and Audiencia of Santa Fe, or upon the New Kingdom 
of Granada, and so remained until the independence. 

On the other hand the Province oj Costa Rica, which 
from the creation of the Audiencia of the Confines, or 
Guatemala, formed part of it, continued to depend upon 
the Audiencia and Captaincy-General of Guatemala, of 
the Viceroyalty of New Spain (Mexico), until its colonial 
emancipation. 

This is clearly shown by the fact that the Audiencia 
of Guatemala continued, as it did before the Recopilacion 
de Indias, to act, in all the affairs of Costa Rica, as the 
superior of its governors and to receive the communica- 
tions and orders of the King for their discharge, as appears 
from the numerous cases cited in the documents submitted 
in this litigation. 

And this is corroborated by the fact that the Audiencia 
oj Guatemala constantly filled the offices of governor and 
captain-general of Costa Rica, ad interim, until the Crown 
made the appointments. It was in this temporary fashion 
that the Audiencia of Guatemala appointed, as Governors 
and Captains-General of Costa Rica, Diego de Herrera 
Campuzano (1704), Jose Antonio Lacayo de Briones 
1607—10 



118 

(i 712), Pedro Ruiz de Bustamente (17 16), Francisco 
Carrandi (1736), Francisco de Olaechea (1739), Luis Diez 
Navarro (1747), Francisco Fernandez de la Pastora (1754), 
Jose Gonzalez Rancafio (1757), Francisco Javier de 
Oriamuno (1763), Juan Flores (1781), Jose Antonio 
de Oriamuno and Juan Martinez de Pinillos (1789). 

(3) The Crown continued to appoint Governors 

AND CaPTAINS-GENERAIv OF THE PROVINCE OF 

Costa Rica. 

Carlos II who, before the publication of the Recopilacion, 
appointed Juan Francisco Saenz as Governor and Captain- 
General of Costa Rica, and Miguel Gomez de Lara after 
he gave his royal sanction to that code, appointed two 
others: Manuel de Bustamente (1692) and Francisco 
Serrano de Reina (1695), fully demonstrating, therefore, 
that in his compilation of laws, he had not intended to 
suppress, nor had he suppressed, the Province of Costa 
Rica. 

His successors continued to fill those offices in pro- 
prietorship, as appears by the appointments of Lorenzo 
Antonio de Granda (1703), Diego de la Haya Fernandez 
(17 1 8), Baltasar Francisco de Valderrama (1724), Antonio 
Vazquez de la Cuadra (1733), Juan Gemmir (1738), 
Cristobal Ignacio de Soria (1748), Manuel Soler (1757), 
Jose de Nava (1765), Juan Fernandez de Bobadilla (1771), 
Jose Perie (1777), Jose Vazquez Tellez (1789), Tomas de 
Acosta (1796), Juan de Dios de Ayala (1810) and Bernardo 
Vallarino (18 18). 

The titles of these governors and captains-general were 
conferred by Royal cedulas, granting to them the same 
jurisdiction that their predecessors exercised, but without 
changing the boundaries of the province. 



119 

Senor Maura states in his opinion in behalf of Colombia 
(page 33) that it is idle to give any attention to the period 
subsequent to 1 680, because both parties were agreed that 
the designation of the frontier districts of the Audiencias 
of Panama and Guatemala did not suffer any alteration 
whatever during the centuries that followed. 

(4) Boundaries op the Viceroyai^ty of Santa Fe 
WITH Costa Rica as a Province of the Audiencia 

OF GuATEMAIvA AND BORDERING THEREON. 

After the Viceroyalty of Sante Fe was created and the 
Audiencia of Panama was recast, the boundaries of the 
Province of Costa Rica continued as a matter of fact to 
be the same, on the east, as they were before; that is, 
as separating the Audiencia of Guatemala from the 
Audiencia of Panama, a dependency of the Audiencia 
of Peru. 

(a) Antecedents. 

We have already seen, in treating of the demarcation 
of Artieda of 1573, how, by virtue thereof, there was left 
included in the Province of Costa Rica, the Valley of 
Guaymi on the north and within the limit marked by the 
Bscudo de Veragua, and the Valleys of Chiriqui on the 
south. 

Dr. Alonso Criado de Castilla, the Senior Judge of the 
Audiencia of Panama, on May 7, 1575 (Doc. No. 64), 
wrote his "Description of the Kingdom of Tierra Firme, 
Which is Subject to the Royal Audiencia of Panama," 
in which he told the King : 

"The territory that is settled in this Kingdom, as 
far as the jurisdiction of your Royal Audiencia of 
Panama extends, is eighty leagues in length, that is, 



120 

from the Gulf of San Miguel as far as Concepcion de 
Vera git a; and twenty-four in width, which is from 
the same city of Concepcion to Philipina." 

Regarding the Province of Veragua, he asserted that it 

"* * '•" has a district thirty leagues in length, 
extending from the said city of Concepcion, as far as 
the village of Mariato, and in width twenty leagues 
in its greatest extent, which is from the River Calobre 
as far as the said city of Concepcion." 

According to this description of the Audiencia of 
Panama, the demarcation of Artieda was located outside 
of it. In order to decide the conflict, which had arisen 
between the latter and the Governor of Veragua in regard 
to the settlements Artieda had been planning to make 
the King, by Royal cedula of August 30, 1576 (Doc. No. 
66), entrusted to the Audiencia of Guatemala the duty of 
determining upon which side those establishments were 
going to lie since they should have been dependencies of 
the governor to whom the Guaymi River, the Ba}^ of 
Almirante and Bocas del Drago belonged as the boundaries 
of his government. And, indeed, Artieda founded the 
city of his name in 1577, and took possession of the Valley 
of Guaymi in 1578 (Docs. Nos. 67 and 68). 

The President of the Audiencia of Guatemala and the 
Judge Inspector (Juez Visitador) of Costa Rica issued a 
commission, in 1591 (Doc. No. 78), to Captain Cabral, 
in the execution of which he traveled over all of Bocas 
del Drago and the Bays of Almirante; and 

"* * * having entered the Guaymi River, he 
traversed with the soldiers the whole of the isthmus 
of land which lies from the North Sea to the v^outh 
Sea and came out to the savannas of Chiriqui." 



121 

We have seen, also, how in 1605, Sojo, the deputy of 
Ocon y Trillo, Governor of Costa Rica, founded the city 
of Santiago de Talamanca, the territory of which was 
marked out as far as the Hne of the Escudo de Veragua, 
the end of the Government of Costa Rica. Dr. Alonso 
Criado de Castilla, who knew so well the Audiencia of 
Panama, was then Preisdent of the Audiencia of Guate- 
mala and in his letter to the King of November 30, 1608 
(Doc. No. 74), he speaks of the territory of the Bay of 
Almirante as belonging to Costa Rica, "* * * which 
borders upon that of Veragua belonging to the district 
of the Royal Audiencia of Panama," and he makes allusion 
to the conquest of Talamanca and the boundaries of the 
Valley of Duy. 

During the XVIIth century the governors of Costa 
Rica and the Audiencia of Guatemala made great efforts 
to subdue the Indians of Talamanca, and the King 
approved the undertakings that were carried on, and 
even bestowed special rewards on their leaders (Docs. Nos. 
77, 78, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 137, 138, 
i39» i53> 161, 237, 238 and 239). The missionaries 
worked admirably in the XVIIIth century to pacify and 
reduce the Indians of Talamanca, the missions having 
their headquarters in Guatemala, the audiencia of which, 
and the Province of Costa Rica, helped them so far as 
they were able by supplying them with necessities and 
protecting them with military escorts (Docs. Nos. 140, 
142, 143, 144, 145, 147, 149, 152, 153, 158, 164, 170, 172, 
175, 178, 217 and 240). 

On the southern side of the Province of Costa Rica, 
the Valleys of Chiriqui, expressly embraced in the demar- 
cation of Artieda, were always a border region with the 
Province of Veragua, although by toleration they did not 



122 

remain wholly within the former, for the Chiriqui Viejo 
River was considered as the divisionary line. At that 
river was fixed the boundary of the Corregimienio of Quepo 
and Boruca, to which the Royal cedulas of April 28, 1709 
(Doc. No. 146), September i, 1713 (Doc. No. 152), and 
May 24, 1740 (Doc. No. 164), refer. 

Such was the state of things when the Viceroyalty of 
Santa Fe was created; but by its creation the Audiencia 
of Guatemala suffered no change whatever in its boun- 
daries, because all action in the matter of that audiencia 
was reduced to the effort to preserve its contiguity with 
the Audiencia of Panama, although dependent upon the 
new viceroyalty instead of the Viceroyalty of Peru; and 
when that audiencia (of Panama) was suppressed and its 
jurisdiction merged in the Viceroyalty of Santa Fe, in 
which it was recast, there was no variation in the boun- 
daries of Costa Rica. 

But it is very interesting to follow the descriptions of 
the Viceroyalty of Santa Fe, because in stating its bound- 
aries with the Viceroyalty of New Spain and the Audi- 
encia of Guatemala, the boundaries of Costa Rica are con- 
firmed and its existence as a province is evidenced down 
to the end of the colonial epoch. 

(b) Description of the Kingdom of Tierra Firme by the 
Comandante General of Panama, Don Antonio Guill, 
in lySo. 

The Audiencia of Panama having been suppressed in 
1 75 1, and its government converted into the Coman- 
dancia general of Tierra Firme, it was directed by Royal 
order of May i, 1758, that a description should be made 
of it; this was done by Don Antonio Guill y Gonzaga, who 
was then the Comandante general, in a report addressed 



123 

from Panama, September 30, 1760 (Doc. No. 171), to the 
Minister of the Indies. 

According to that description, the Government of Tierra 
Firme, was composed, in 1760, of Darien, Panama, Porto- 
belo and Veragua The Province of Veragua was ruled 
by a governor, who had under his orders the sub-governors 
or deputies of Nuestra Senora de los Remedios and of 
Santiago al Angel (Alanje), or Chiriqui. The last settle- 
ment of the Province of Veragua, on this side, was Bugaba, 
to the east of Chiriqui Viejo River and distant two leagues 
from the frontier of Costa Rica. 

(c) Description of the Viceroyalty of Santa Fe, by its Viceroy, 

the Marquis de la Vega de Armijo, in 1772. 

In the Description and Status of the Viceroyalty of Santa 
Fe, by its Viceroy, the Marquis de la Vega de Armijo, 
written by Dr. Moreno y Bscandon, Fiscal Protector of 
the Indians, in 1772 (Doc. No. 174), it is stated that this 
viceroyalty borders on that of Mexico by Costa Rica, 
"and being divided from the Audiencia of Guatemala 
there is left for its district, that of the Province of Alanje 
and Veragua, all the South Coast, from the Bay of Chiriqui 
(or of David) by that of Guayaquil to near Cape Blanco 

The description goes on to treat of the country to the 
north, east and south down to when it says: "* * * 
until by Portobelo and the Government of the Province 
of Veragua it closes the boundary upon the Audiencia of 
Guatemala and Viceroyalty of New Spain. * * *" 

(d) Report of the Governor of Veragua, Don Felix Francisco 

Bejarano, in 1775. 

The Governor of Veragua, Don Fehx Francisco Bej- 
arano, at the request of Guatemala, reported in 1775 



124 

Doc. No. 175), that the end of Veragua reached as far 
as the frontier of Talamanca, which is left in Costa Rica, 
and therefor with its Bay of the Almirante (Bocas del 
Toro) and its Islands of Tojar, or Colon, etc. 

(e) Description of the Viceroyalty of Santa Fe, of Tierra 
Firme and of Veragua, by the Missionary Sobreviela, 
in 1796. 

In the most interesting work of Fray Manuel Sobreviela, 
Missionary of Ocopa, entitled: "Description, Historic- 
Geographical, Political, Ecclesiastical and Military, of 
Southern America," (Lima, 1796; Doc. No. 181), the 
Viceroyalty of Santa Fe is first described generally, by the 
statement that it embraces 

"* * * from the Rimr Chiriqui, of the King- 
dom of Tierra Firme, which is the dividing lineol 
this Viceroyalty and of the two Americas by the 
District of Costa Rica, of the Province of Guatemala, 
as far as the neighborhood of the Gulf of Maracaibo." 

It then takes up thelKingdom of Tierra Firme, and says' 
that it 

"* * * is bounded on the east by the Province 
of Cartagena, from which it is separated by the River 
San Juan; on the west by the RivER Chiriqui, which 
serves as the boundary of the Province of Costa Rica, 
in the Kingdom of Guatemala; on the north by the 
North Sea and on the south by the Pacific. It is two 
hundred leagues in length from east to west; that 
is, from the River Atrato or Gulf of Darien, as far 
as the River Chiriqui {Vie jo, or old, of south), and 
eighty in width from north to south, at the widest 
part, which is from the port or bay of Mariato to the 
point of the bay or port of the River Chagres. This 
Kingdom is divided into three provinces, which are 
Panama, Veragua and Darien." 



125 

Continuing it takes up Verag^la: 

"It is bounded on the north by the North Sea; 
on the south by the Pacific Ocean; on the east by the 
Province of Panama, and on the west by the River 
Chiriqui, which divides if Jrom Costa Rica and King- 
dom of Guatemala. It is sixty leagues from east to 
west, from the city of Nata to the village of Chiriqui 
and eighty in width from the Cape of Conejos on the 
South Sea to the extreme of the Kscudo dE Veraguas 
in the North Sea." 

And in describing the principal rivers of the Provinces 
of the Kingdom of Tierra Firme, it says : 

"The first is the River Chiriqvii, which rises in the 
mountains in the south part of the Province of Vera- 
gua and empties into the South Sea or Pacific (Gulf 
of Chriqui or Sinus Chiriquensis of the Map of the 
Jesuits Brentano and La Torre) . It serves as bound- 
ary to this province and to all southern America, 
which it separates from the northern and from the Dis- 
trict of Costa Rica in the Kingdom of Guatemala." 

It is thus seen that the description is complete and agrees 
perfectly with the antecedents we have set forth. 

(f) Official Communication of the Governor of the Islands of 
San Andres, in 1802; and Resume. 

In concluding, let us add that the Escudo de Veragua 
was even recognized as a border point by the Governor 
of the Islands of San Andres, Don Tomas O'Neille, of whom 
we shall speak hereafter as the instigator of the Royal 
order of 1803, which, according to Colombia, incorporated 
Costa Rica in the Viceroy alty of Santa Fe. 

O'Neihe, addressing himself to the President of Guate- 
mala, in an official communication of October 22, 1802 
(Doc. No. 184) said: 



126 

"If Your Worship will be pleased to write to said 
Chief (the Viceroy of Santa Fe), and get from him a 
frequent visit of the vessels of the King on these 
waters, for they only go as far as the ESCUDO DH 
VERAGUA, which is the limit oj the demarcation 
between the two Kingdoms, it would avoid great injury 
to the State, etc. * * *." 

To recapitulate: the boundaries of the Viceroyalty of 
Santa Fe, with the Audiencia of Guatemala at the begin- 
ning of the XlXth century were: on the north the line 
extending from the Escudo de Veragua which corresponds 
to the Chiriqui (not Viejo, or old), or Culebras, or Calobebora 
River ( by which various names it is called) ; and on the 
south the Chiriqui Viejo River. And, therefore, those 
were also the boundaries of Costa Rica, the last province 
of the Audiencia of Guatemala, bordering on that Vice- 
royalty. 



n. 

THE ROYAL ORDER OF NOVEMBER 20, 1803, REFER= 
RING TO THE MOSQUITO COAST. 

I. Antecedents, Formation and Text op the Order. 

From the time of the conquest of Jamaica, the Eng- 
lish never ceased their encroachments upon the islands 
of San Andres and the Mosquito Coast, which acts became 
a source of continuous conflicts ; to this, however, the Treaty 
of London, of July 14, 1786 (Doc. No. 176), sought to put 
an end by agreeing that the English should evacuate the 
places where they had established themselves. 

Those Islands of San Andres (embracing under that 
appellation those of San Andres, Santa CataHna and 
Providencia), were the subject of serious attention by 
the Spanish rulers, nearly all of their inhabitants having 
been English and the islands themselves centers of smug- 
gling and of forays upon the Mosquito Coast. 

Don Tomas O'Neille, a captain of infantry who had 
been in the military service of the Viceroyalty of Santa Fe 
was commissioned, in 1789, to visit those islands, where 
he became intimate in friendship and business with the 
Taylor brothers who exercised great influence there. The 
Taylor brothers, in 1 794, through the Viceroy of Santa Fe, 
applied to the King asking that the English might be 
allowed to continue in the islands, that a governor be 
appointed (whose salary they would pay), and that Don 
Tomas O'Neille be named as such governor. 

Lieutenant Don Jose del Rio, of the Navy, who also 
visited those islands by order of the King, gave His 
Majesty a very minute account of them in his extended 
report from Trujillo, dated August 23, 1793 (Doc. No. 

(127) 



128 

1 79) ; in this he advised that the islands be abandoned 
and that with their settlers an estabHshment be made at 
Bluefields on the Mosquito Coast. 

By Royal order of November 6, 1795 (Doc. No. 180), 
it was provided that "for the present" the English should 
not be compelled to evacuate the Island of San Andres 
and establish themselves at Bluefields; that this might 
be accomplished later, on a suitable occasion, and that 
Don Tomas O'Neille should be Governor "dependent 
upon your Captaincy-General (of Guatemala)." 

Scarcely had he taken possession of his ofhce when he 
fell out with the Captain-General of Guatemala, who 
ordered him to leave the islands until the conclusion of 
peace with England, and assigned him to various military 
duties in Nicaragua. Having had occasion to go back to 
the islands, he petitioned that there should be conferred 
upon him the political and military command of the 
establishments of Trujillo, Cape Gracias a Dios and San 
Juan de Nicaragua, with a salary of 3,000 pesos, and other 
extraordinary conditions, all of which the Captain-General 
of Guatemala refused. 

Once back at San Andres he undertook to free its 
government from that of Guatemala, to this end making 
use of his friends, the Taylors, and counting upon the 
support of his protectors in Santa Fe. 

Under date of December 5, 1802 (Doc. No. 185), 
O'Neille addressed himself to the Minister of War, sending 
him two statements, one from the Alcalde, Juan Taylor, 
of November 25 (Doc. No. 187), and the other his own, 
of December 4 (Doc. No. 186), in which he asked for the 
aggregation of those islands of the Mosquito Coast to the 
Viceroyalty of Santa Fe; these statements he forwarded 
through that viceroyalty instead of the Captain-General 



129 

of Guatemala — because of the difference in distance, he 
said. 

Both- statements went to the Board of Fortifications 
and Defense of the Indies which, on September 2, 1803 
(Doc. No. 189), reported favorably thereon, adding that 
it would be desirable to follow the same course with regard 
to the establishments of Cape Gracias a Dios and the 
Bay of Bluefields on the desert Mosquito Coast. The 
record in the case was returned to the Board on the 23d 
of the same month, and its attention called to the fact 
that if this plan were carried out it would leave Guatemala 
undefended on the Atlantic side. The Board insisted, 
in its second report of October 21 (Doc. No. 190), con- 
fining itself to the statement that the segregation would 
not be injurious to Guatemala, since the Mosquito Coast 
was a wilderness. In accord with these reports it was 
determined to issue the Royal order which Don Miguel 
Cayetano Soler, acting as Minister of War, communicated, 
on November 20, 1803, to the Captaifi-General of Guate- 
mala (Doc. No. 191). 

This same Minister in another communication (Doc. 
No. 192), transmitted the order to the Viceroy of Santa 
Fe, and this communication is the one that was invoked 
by Colombia ; it reads as follows : 

"San Lorenzo, November 30, 1803. 
"Most Excei.lent Sir: 

"Don Jose Antonio Caballero, in a letter of the 
20th instant, writes to me, as follows : 

"'The King has resolved that the Islands of San 
Andres and the part of the Mosquito Coast from Cape 
Gracias a Dios, inclusive, toward the River Chagres, 
shall be segregated from the Captaincy-General of 
Guatemala and be dependent upon the Viceroyalty 
of vSanta Fe. And His Majesty has been pleased to 



130 

grant to the Governor of the said islands, Don Tomas 
O'Neille, the salary of 2,000 pesos fuertes, instead of 
the 1,500 which he at present enjoys. By Royal 
Order I inform Your Excellency of the foregoing in 
order that the Ministry in your charge should take 
the necessary steps for the fulfillment of this sovereign 
mandate.' All of which I state to you by His 
Majesty's command, for its due execution. 

"May God keep Your Excellency many years. 

"SOLER." 

"To the Viceroy of Santa Fe. 

(2) That order was not applicable to Costa Rica, 
because what was called the mosquito coast 
ended before that province began. 

The importance attributed by Colombia to this Royal 
order is very great, for she assumes that it incorporated 
into the Viceroyalty of Santa Fe the long stretch of terri- 
tory that extended from Cape Gracias a Dios as far as 
the Chagres River, within which extension Costa Rica was 
embraced. That is to say, that just as Colombia argued 
that "all Veragua, and therefore Costa Rica, belongs to 
Tierra Firme," now she argues that "all of the Mosquito 
Coast as far as the Chagres River, and therefore Costa 
Rica, belongs to the Viceroyalty of Santa Fe." 

But this Royal order was not applicable to Costa Rica 
for the very simple reason that it referred only to the 
Mosquito Coast, which ended on the south before that 
province began. 

The origin of the name and the extent of the Mosquito 
Coast are clearly shown by the official documents. 

The Bishop of Nicaragua, Fray Benito Garret, in his 
report to the King of November 30, 1711 (Doc. No. 151), 
relates that in the year 1641 a vessel laden with negroes 
was wrecked on the coast that extends from Trujillo as 



131 

far as the mouth of the San Juan River ; that these negroes 
were forced into a fight with the Carib Indians, and the 
latter, defeated, withdrew through the mountains toward 
the territories of Segovia and Chontales ; that the victors 
took to themselves the women of defeated Indians, and 
that their descendants were called "Zambos," the issue 
of negroes and Indians. This accords, he says, with the 
account given by a negro, named Juan Ramon, "who 
lives now in this city (Granada de Nicaragua) and whose 
advanced age accords well with the recollection which 
he asserts that he has of the facts he narrates." 

The Bishop complained to the King of the lamentable 
ravages and captures made by the Zambos who occupied 
the locality called Puntagorda and the said Mosquito terri- 
tory which is, as indicated in a parenthesis, the "sea coast 
from the mouth of the River San Juan as far as the city 
of Trujillo in the Province of Honduras," the longitude 
of which, he adds further on, would be about sixty leagues. 
And he asks the King for the subjugation of the Zambos ^ 
suggesting the best means to that end. 

By Royal cedula of April 30, 17 14 (Doc. No. 154), the 
King directed the Captain-General of Guatemala to under- 
take the conquest of the Mosquitos. He ascribed their 
origin to the same source as that given in the Bishop's 
account, and took into consideration the reports of the 
said captain-general regarding the settlements of the Carib 
Indians, negroes and Zambos in Mosquito Island, on the 
side of the Province of Nicaragua; and said further that 
it was well known that they were on the coast of the 
North Sea, spread over an area of fifty or sixty leagues, 
beginning to count at twelve leagues from the San Juan 
River up to twenty from the city of Trujillo ; that Zambos 
were skilful in the handling of arms, and were assisted 



132 

and protected by the English of Jamaica, with whom they 
carried on their trade. 

The attempt to subdue the Mosquitos was not success- 
ful. These people, clever in the management of boats 
and even the firearms with which they were supplied by 
the English, made continual incursions by sea and land 
upon the neighboring settlements, carrying with them 
desolation, captivity and death. As the result of a report 
from the Captain-General of Guatemala dated May lo, 
1737, and relating to a treaty of peace proposed by the 
so-called ' ' King ' ' of the Mosquitos, and to the two settle- 
ments which the English had begun to establish on that 
coast, the Council of the Indies rendered an opinion setting 
forth the means for subduing the Mosquitos and avoiding 
the evils of their relations with the English; this opinion 
was approved by the King in the Royal cedula of August 
8, 1739 (Doc. No. 162). 

In that Opinion of the Council of the Indies, of July 8, 
17.39 (Doc. No. 162), the following appears: 

"These people owe their appellation and origin to 
the Island of Mosquito, where, in the year 1641, 
there arrived a vessel laden with negroes (who cap- 
tured the Indians in order to sell them as slaves and 
kept the women for purposes of procreation) * * *. 
According to reports from the President and others, 
they occupy at the present time more than sixty 
leagues of land extending from the jurisdiction of 
Comayagua (Honduras) as far as that of Costa Rica 
of the dominions of Your Majesty adjoining the coast 
of the North Sea, their territor}^ being in width only 
three leagues of productive and habitable land ex- 
tending up to the slope of the mountains that separate 
them from the dominions of Your Majesty * * *. 
In those sixty leagues they have estabhshed for their 
dwelling's twentv-four settlements or hamlets * ''' *. 



133 

By the last and most reliable news that has been 
received, the Mosquitos number 2,000 men who bear 
arms. They also have among them Spaniards, 
French, English, apostate Indians and fugitive slaves, 
their territory being a general asylum for all the 
scoundrels who flee from justice * * *. The care 
of the Council is growing on account of these enemies, 
because they are found to have considerably increased 
and not only have they a chief * * *^ but they have 
the boldness to call him a King and demand that 
Your Majesty shall recognize him as such in a treaty 
of peace and commerce, which unheard of insolent 
audacity leads us to suspect that it does not come from 
them alone. This presumption becomes probable 
* * * when it is noted that these barbarous Mos- 
quitos are intimate and in league with the English 
of Jamaica, of New England, etc. * * *." 

The Captain-General of Guatemala, Don Pedro de 
Rivera, in a report of November 23, 1742 (Doc. No. 166), 
addressed to the King in response to his order concerning 
the measure for the expulsion of the Mosquitos, says of 
them: 

"At a short distance from Cape Gracias a Dios, 
which is on the coast of the Province of Comayagua, 
there is a small island named Mosquito, in which, 
in the year 1650 (according to tradition) a vessel was 
wrecked which carried negroes under the charge of 
Lorenzo Gramalxo, of the Portuguese nation * * * ; 
they interbred with the Indians, and produced the 
Zambos, under the designation of "Mosquitos," de- 
rived from the island upon which the negroes were 
shipwrecked, and this is the distinctive appellation 
by which they are known, and this name applies to 
all those that dwell with them, they being the heathen 
Indians that inhabit those territories, the mulattoes 
and negroes who have left the dominions of His 

1607 — II 



134 

IMajesty in order to enjoy the free life without any 
subjection * * *. The English who Hve among 
the Zambos are most degraded * * *; the Zambos 
are so far subordinate to the EngHsh nation that 
they obey its orders as if they were under its sover- 
eignty, and the one that they have among them under 
the title of King is invested with it by the Governor 
of Jamaica." 

The Captain-General of Guatemala enumerates twenty- 
seven hamlets which the Zambos occupied at that time 
and which lay generally along "the rivers which are to 
be found between the two Provinces of Honduras and Costa 
Rica," also mentioned by him. And he describes the 
Island of San Andres, on which lived the Zambos "in con- 
junction with the English," situated thirty leagues from 
that coast. 

It results from these official documents that the evi- 
dence is clear that it w^as the JNIosquito Coast that was 
occupied by this little race of Zambos, which sprang from 
the union of the negroes who came to the Island of Mos- 
quito and the Carib Indians located in the Province of 
Nicaragua, between the Provinces of Honduras and Costa 
Rica. Its length is fixed at sixty leagues. 

The Colombian publicist and statesman, Don Pedro 
Fernandez Madrid, claims, like the majority of English 
geographers, that the Mosquito Coast begins at Cape 
Honduras, but he says that it ends at Piinta Gorda, near 
the most northern arm of the San Juan River of Nicaragua. 
The Bishop of Nicaragua counts the sixty leagues from 
the mouth of the San Juan River to the city of Trujillo, 
indicating Punta Gorda as the last point in the south 
occupied by the Zambos, from whence they make their 
raids. The Royal cedula of 17 14 begins to count the 
fifty or sixty leagues, which it says this coast has, at 



135 

twelve leagues to the north of the San Juan River up to 
twenty from the city of Trujillo. The Council of the 
Indies, in its opinion of 1739, starts from the end of Coma- 
yagua ; according to this the sixty leagues of which it speaks 
begin at Cape Gracias a Dios and end in the center of the 
lagoon of Blue fields. 

It must be remembered that the Province of Costa Rica 
ended on the north at the Desaguadero, or San Juan 
River, and that this boundary is found some ten leagues 
beyond Punta Gorda, twenty from Bluefields and eighty 
from Cape Gracias a Dios. Therefore Costa Rica was 
not embraced in the Mosquito Coast. 

It is true that Costa Rica reached as far as Cape Gracias 
a Dios and even Cape Camaron in the early times, still 
it did not extend beyond the Desaguadero, or San Juan 
River, after it was definitively bounded, in 1573, with the 
Artieda's Government. The portion segregated from 
Costa Rica in that year, is that with which, in 1576, the 
Province of Teguzgalpa was formed, and that which corre- 
sponds to the Mosquito Coast. This northern portion 
was divided between Honduras and Nicaragua, by Royal 
cedulas of August 23, 1745, establishing as the divisionary 
point Cape Gracias a Dios, which is the point that was 
fixed as the boundary between the present republics of 
those names by the award of the King of Spain herein- 
before cited. 

Because the Royal order of 1803 says: "* * * the 
Islands of San Andres and the part of the Mosquito coast 
from Cape Gracias a Dios, inclusive, toward the River 
Chagres, shall be segregated, etc.," Colombia claims that 
Costa Rica was also segregated, since it lay that side of the 
Chagres River. But the Royal order does not say hasta 
(to, or as far as) but hacia (toward) the Chagres River, 



13G 

and consequently this river does not mark the boundary, 
but only indicates the direction. Let us remember the 
laws of the demarcation of audiencias and the numerous 
Royal orders which we have cited, and it will be seen that 
whenever it was desired to indicate a boundary, the word 
naturally employed was "hasia" (to, or as far as) ; whereas, 
when it was desired to indicate direction the word used 
was "liacia' (toward) or "a la parte de" (on the side of). 
These latter words are more expressive, for instance, when, 
in the demarcation of the Province of Costa Rica assigned 
to Ortiz de Elgueta, Cavallon and Vazquez de Coronado, 
it says from Honduras and Nicaragua "a la parte de (on the 
side of) the cities of Nombre de Dios and of Panama;" and 
yet Colombia will not acknowledge that this signified 
that the Province of Costa Rica should have reached as far 
as the line determined by those two cities. Nor can 
Colombia be understood as meaning to say that the ter- 
ritory incorporated in the Viceroyalty of Santa Fe was 
that which reached as far as the Chagres River, next to 
Portobelo, since Portobelo and the Province of Veragua 
already belonged to that viceroyalty. 

If the reports of the Board of Fortifications (Doc. Nos. 
189 and 190), by virtue of which the Royal order of 1803 
was issued are read, it will be seen that they do not refer 
to the whole of the Mosquito Coast, but only to the estab- 
lishments of Cape Gracias a Dios and Bay of Bluefields. 
When, by virtue of the Treaty of London, of 1786 (Doc. 
No. 176), the English evacuated the Mosquito Coast, four 
settlements or establishments of vSpaniards were directed 
to be created therein; and it was especially in order to pro- 
tect these establishments that that Royal order was issued. 
If it says the part of the Mosquito Coast from Cape Gracias 
a Dios toward the Chagres River, it is in order that it 



137 

should not be understood as meaning from Cape Gracias a 
Dios in the direction of Honduras, but toward the south, 
and as far as those estabhshments, which had as their 
maximum Hmit the Desaguadero or San Juan River, 
might reach. 

3. MlIylTARY AND TrANSITORY CHARACTER OF THAT ROYAI, 

Order. 

Even assuming that it had been desired to include Costa 
Rica in the Royal order of 1 803 , that order lacked the force 
to change the legal status of the province as to adminis- 
trative dependency and boundaries, as we are about to 
show; and as such a hypothesis is only supported by the 
words "toward the River Chagres," it cannot be seriously 
considered as a sufficient basis for the suppression of a 
province or its transfer from one viceroyalty to another or 
from one audiencia to another . 

From its preparation and its purpose that Royal order 
can only be characterized as a military order. It was 
issued by the Minister of War, as a result of petitions 
addressed to him, and the approval not of the Supreme 
Council of the Indies, but of the Board of Fortifications 
and Defense of the Indies ; and it was promulgated by the 
same ministry to the military and not to the civil authorities. 
Its purpose, as shown by the reports of that Board and 
deduced from the history that has been given of the Mos- 
quitos, allied with the Enghsh, was to provide a better 
defence for the Islands of San Andres and the Spanish estab- 
lishments on the Mosquito Coast, against the attacks from 
the Zambos and English. 

Responding to these needs for protection, and also for 
the prevention of smuggling, other provisions had been 
previously enacted entrusting the guardianship of these 
coasts to the neighboring governors without any idea 



13S 

of making thereby any change in the demarcations of their 
respective districts. Thus, we see the Royal cedula of 
August 23, 1745 (Doc. No. 167), which appointed the 
Governor of Nicaragua, Don Alonso Fernandez de Heredia, 
Comandanic General de las Annas, and sought to prevent 
ilHcit commerce throughout the territory embraced between 
Cape Gracias a Dios and the Chagres River; the Royal 
order of September 24, 1786 (Doc. No. 177), addressed to 
the Captain-General of Guatemala, in which he is informed 
that the Viceroys of Mexico and Santa Fe have been 
directed that he shall be given whatever he asks for in 
order to facilitate the evacuation of the Mosquito terri- 
tory; that of February 26, 1788, to the Comandante de 
Marina of Havana, to place himself at the orders of the 
Captain-General of Guatemala,^ etc. 

Such measures were merely transitory in character, 
and they ceased to be effective when there came a change 
in the circumstances or personnel which had called them 
forth. O'Neille knew how to take advantage of the cir- 
cumstances in which those islands, and the establishments 
of the Mosquito Coast, were placed by the orders for evac- 
uation given to the English and the latent state of war 
with England, in order to advance his personal ambitions. 
But the Royal order of 1803 served only to give to O'Neille 
the Government of the Island of vSan Andres; this he sur- 
rendered to the English, in 1806, but it was soon after- 
wards restored by them to vSpain. 

4. The Order Could Not Change the Laws of Terri- 
torial Division. 

If, nevertheless, the Royal order of November 20, 30, 1 803 , 
be considered to be a measure not military and transitory, 



'Peralta, Limiles de Costa Rica y Colombia, p. 189. 



139 

in character, but rather one having, as Colombia claims, 
the capacity of a legislative mandate which changed terri- 
torial division, then, the question being placed on this 
ground, we are impelled to assert — and most positively — 
that the Royal order in question, according to the laws of 
the Recopilacion de Indias, which governed when it was 
issued was null and void. 

Both parties are in accord in recognizing that the 
Recopilacion de Indias gave the character of laws to all 
those which it embraced in its text, and commanded that 
they should be obeyed and complied with as such, as 
directed by the Royal cedula of May i8, 1680, which 
sanctioned it; and it is important to remember what we 
have heretofore stated in regard to the value of those laws 
when discussing their relations to the Royal dispositions 
prior and subsequent to the publication of that code. 

Law I, title i, book II (Doc. No. 92), lays down the 
doctrine that 

"* * * those only (the laws of the Recopilacidn) 
shall have the force of law and pragmatic sanction^ 
in that which they decide and determine; and if it 
should be desirable that others be made beside those 
contained in this book, let the Viceroys, Presidents, 
Audiencias, Governors and A /caW^.j ma>'c»r^5 advise and 
inform us as to the same through the Council of the 
Indies, giving the motives and reasons why they are 
submitted in order that, being understood, such reso- 
lution may be taken as is most desirable; and they 
may be added in a separate volume." 

Law 2, title 2, book II (Doc. No. 94), confers on the 
Council of the Indies supreme jurisdiction over all the 

^A pragmatic sanction has the force and effect of a solemn 
ordinance or decree by the legislative authority of the State. 



140 

Western Indies, and empowers that body to "order and 
make, with our advice the general and special Laws, 
Pragmatics Ordinances and Proiisiofics." 

Law I, title 15, book II (Doc. No. 105), of Phihp IV, 
declares that all the territory that is discovered in the 
Indies is divided into Audiencias, which are subordi- 
nate "* * * to our Supreme Council of the Indies, 
which represents our Royal Person;" and it commands 
that the audiencias and the governments shall be pre- 
served as "they now" are in the district of each, and 
that "* * * no change shall be made therein, without 
our express order or that of our said Council." 

To these laws, which we have hereinbefore cited, should 
be added the following, from title 2, book II, in which 
the direction is confirmed that measures of a legislative 
character and, in general, those referring to the adminis- 
tration of the Indies must be passed upon by the Supreme 
Council of the Indies, which council was to be subject to a 
fixed procedure, and charged with the execution and 
observance of those laws. 

Law 6 (Doc. No. 95) charges the Council of the Indies 
that it shall always have a description and full investigation 
made of all matters concerning the conditions of the Indies 
"* * * which may become matters for the adminis- 
trative or legal action." And Law 12 (Doc. No. 96) reads: 

"Thus We command, that whenever those of our 
Council of the Indies may have to provide and direct 
the Laws and general Provisions for the good govern- 
ment of the Indies, they may be very well informed 
and sure beforehand of what has already been pro- 
vided in the matters in question, and they must pre- 
viously acquire the fullest possible information and 
notice about the things, affairs and territories con- 
cerned, and hear also the advice of those who govern 



141 

therein and of those who might be able to throw any 
hght on the matters, unless delay in asking for 
information may cause detriment." 

Law 14 (Doc. No. 97) requires that the Council of the 
Indies shall meet in full membership "* * * for the 
consideration of general matters of government, such 
as making Laws and pragmatics and the interpretation of 
derogation thereof, the establishment of audiencias, erec- 
tion of churches and dismemberment, division and union 
thereof, and other matters which in the opinion of the 
President or Governor are important.'' And not only this, 
but it is particularly provided in Law 15 (Doc. No. 98), 
that two-thirds of the members of the Council "must agree 
in an opinion" whenever there shall be a question as to 
"making new Laws or repealing the old ones.'' 

Law 17 (Doc. No. 99) entrusts to the Council the execu- 
tion of the orders of the King for better provision and cer- 
tainty; Law 18 (Doc. No. 100) provides that the Council 
shall report to the King whenever it may receive orders of 
doubtful interpretation; Law 24 (Doc. No. loi) charges it 
to arrange always that the new laws and provisions be pub- 
lished where and when it may be best, and Law 25 (Doc. 
No. 102) directs it "* * * to ascertain and understand 
how the Laws We provide and order are being obeyed and 
fulfilled; and that they severely punish according to law 
those who by perversity or neglect shall not comply there- 
with or execute them." 

We will cite, finally, Law 23, title 6, book II (Doc. 
No. 104), providing that the provisions and despatches in 
judicial matters between parties, which are issued by the 
Council of the Indies, shall be issued in the name of the 
King, without the formality of his signature; but that all 
other matters of government, mercy and justice arising in 



142 

the Indies shall be considered and despalched by the King, as 
had been done theretofore. 

All of these laws were violated by the Royal order of 
November 20, 1803, since it was not given by the King, 
but in the name of the King — it was not dictated in con- 
sultation with the Supreme Council of the Indies, but upon 
a report of the Board of Fortifications; and not having 
been acted upon by the Council (to which was entrusted 
the supreme jurisdiction in this regard), the guarantees 
were left unfulfilled in respect of the information to be 
given by the authorities interested, the full quorum and the 
minimum of votes, which the Rccopilaciou required in 
order to change the laws of the Indies. 

And as it was not the intention of the Government to 
make a law which should change the prior laws of terri- 
torial division, all of which had been made in the Council 
of the Indies, but simply to dictate a Royal order of a 
ministerial character, the order was signed "in the name 
of the King," and was transmitted by the Secretaryship 
of the Department of War, in order to conform to military 
convenience. 

Counsel for Colombia, who expend so much effort in 
insisting upon legislative acts for the establishment of 
territorial division — to the extent, even, of denying validity 
to the Royal demarcatory cedulas that antedated the 
Recopilacion de Indias — deliberately ignore that code in 
order to give legislative force to the Royal order of 1803, 
and maintain that all the Royal orders issued by the abso- 
lute Monarchy had the same legal force as the laws now 
made by the King and the Cortes, in the Constitutional 
Monarchy. But that is not correct. 

It is true that when the absolute Monarchy had once 
been consolidated and the glorious traditions of the Cortes 



143 

of Castile and Aragon had been lost, the will of the Mon- 
arch was law, subject to no external limitations; but this 
will established differences with regard to the exercise of 
power and limited itself by dictating rules of a general 
character, to which resolutions had to be adjusted, accord- 
ing to the nature of the particular cases. 

Although the division of powers now in operation did 
not then exist, the differences between the function of 
legislating and that of administering could not have been 
ignored; neither was it possible for the King to have done 
everything by himself. Therefore the jurisdiction was 
divided into that which was retained and that which was 
delegated, accordingl)^ as the King reserved to himself the 
direct exercise of that power or delegated or confided it to 
the councils, ministers or judges. It is clear that the King 
did exercise the legislative power, by himself alone, and to 
avoid all doubt as to the authority from which those legis- 
lative acts emanated, they must have been headed with the 
name of the King and borne the signature, "I, the King." 
In this manner the resolutions in matters of government 
and administration reserved to the Monarch were headed 
and signed. Such provisions emanated directly from the 
King, and were called pragmatics and Royal cedulas; they 
differed essentially from Royal orders, which could be 
issued in his name without his signature. 

Notwithstanding the delegation of power to the Council 
of the Indies was so ample, the Recopilacion established 
the rule that the provisions for government, mercy and 
justice for the Indies, were to he issued and despatched by 
THE King, as he had been doing; that is to say, by Royal 
cedulas. And that code, in treating of the territorial divi- 
sion, positively prohibited any alteration be made thereof, 



144 

"without the express order of the King or of the Council 
of the Indies." 

So, then, the Royal order of November 20, 1803, which 
was not a Royal cedula enacted by the King, but a minis- 
terial order issued "in the name of the King," without the 
advice of the Council of the Indies, and as the concluding 
act of an administrative proceeding, almost of a personal 
character (the government of Don Tomas O'Neille), it 
was lacking in legislative force, or even in the legal value 
of a decree in a matter of civil demarcation and jurisdic- 
tional fixing of boundaries. 

The authority of absolute monarchs, as in every other 
kind of government, was of two kinds: discretionary and 
regulated, accordingly as it was directed to matters that 
were or were not subject to pre-existing regulations. The 
monarch was under no compulsion to issue such rules, 
but once issued he had to act in accordance therewith, 
unless he modified them or declared exception thereto. 
The Recopilacion de Indias established the procedure for 
the amendment oj the laws which it contained and for the 
adoption of new laws, and required previous information 
to be given to the Council of the Indies, the consideration 
by the latter in full membership, the favorable opinion of 
two-thirds of the voting members and the intervention of 
that Council in the publication and execution of the law. 
None of these things was done in respect of the Royal 
order of 1803; therefore, it could not have the character 
of a law. 

Spanish legislation did not tolerate such transgressions 
of legal procedure. It declared to be iiull and void all dis- 
positions which were not in conformity with legal for- 
malities, or which might be contrary to pre-existing law 
which might be in force. Law 2, title 4, book III of the 
Novisima Recopilacidn, says: 



145 

"Since it happens that by importunity of some or 
in some other way We may grant and deliver some 
letters or Royal patents in contravention of right or 
contrary to law or statute in force, therefore We com- 
mand that such letters or Royal patents shall be of no 
value nor shall they he complied with, although they 
may contain the provision that they are to be executed 
notwithstanding any statute or law of ordinance or 
any other abrogatory clauses whatsoever." 

And this is applicable to the present case, not only 
because it shows that the general system of Spain in the 
matter of legislation was not one of despotism, but also 
for the reason that Law 2, title i, book II (Doc. No. 93), 
of the Recopilacion de Indias directs that the legislation of 
Castile shall be supplemental thereto. 

It is important, also, to note that the laws of the 
Recopilacion de Indias continued in force in the Spanish- 
American provinces until their independence, in so far as 
they may not have been modified by subsequent provi- 
sions of a legislative character; and the publications of 
that code which were made after 1680 were nothing more 
than mere new editions thereof. The fact is that the 
Royal order of November 20, 1803, does not figure in the 
chronological hst of the Royal cedulas. Royal orders and 
decrees embraced in the notes appended to the Laws of the 
Indies, in the fifth Edition (1841), approved by the Court 
of the Indies {Sala de Indias) of the Supreme Tribunal 
and the Regency of the Kingdom, which we have before us. 

We will say, finally, that Colombia's argument, in 
support of the legal force of the Royal order of 1803, based 
as it is on the fact that there was another order of like 
character issued July 15, 1802, relating to the segregating 
of the Government and Comandancia General of Maynas 
from the Viceroyalty of Santa Fe and its aggregation to 
that of Peru, proves quite the contrary from what Colom- 



146 

bia desires to prove and it constitutes the best possible 
confirmation of the doctrine which we have stated. 

It was not by a Royal order, dictated in the name of 
the King, but by the Royal cedula of July 15, 1802 (Doc. 
No. 183), by the King himself, speaking in his own name, 
issued to the viceroys affected thereby, that the Govern- 
ment and Comandancia General of Maynas was created ; 
it was formed out of territory which was minutely marked 
out, segregated from the Viceroyalty of Santa Fe and 
incorporated into that of Peru. It was the result of 
protracted proceedings that extended over a period of 
twenty-five years, initiated by Don Francisco Requcna, 
Royal Commissioner of Boundaries, who administered 
that territory for a long time. It was pursued from the 
very beginning, before the Council of the Indies which, 
after the fullest information from the viceroys and audi- 
encias interested, and in conformity with the opinions of 
the Fiscales (Attorneys General) of Peru and New Spain 
and of the Contaduria General (General Financial Office), 
agreed in full membership to suggest this change in an 
opinion to the King. The Royal cedula approving it w^as 
communicated, as was provided therein, to the Viceroys 
of Peru and New Granada, to the President of the Audi- 
encia of Quito, to the Archbishop of Lima and to the 
Bishops of Quito and of Trujillo; all obeyed and complied 
with it. And besides it was proclaimed from town to 
town.' 



^This Royal cedula of 1802, relating to the Government of 
MaynaS; is discussed at length in the work written by one of the 
counsel herein. vSee "A Study of the Question of Boundaries 
between the Republics of Peru and Ecuador" (Estudio de la 
cuestion de liniites entre las Republicas del Pcrii y del Ecuador), 
Madrid, 1907. Translated into English by Harry Weston Van 
Dyke, Washington, 19 10. 



147 

This was the legal course to be pursued, and the course 
which would have been pursued had it been desired, by 
the issuance of the Royal order of 1803, to change the 
demarcation of the Viceroyalties of Santa Fe and New 
Spain and the jurisdictional limits of their respective 
audiencias and governments. 

(5) The inefficiency and abrogation of this Royal 

Order. 

Furthermore, the Royal order of November 20, 1803, 
called that of "San Lorenzo," fell morally still-born; no 
one took any notice of it, and it was contradicted by 
numerous provisions, which proceeded in every case as 
though it had never existed. 

As soon as the Brigadier, Don Roque Abarca, Inspector 
of Militia of the Captaincy-General of Guatemala, received 
knowledge of this Royal order, he sent a communication 
(Doc. No. 194) to the Captain-General and President of 
the Audiencia, Don Antonio Gonzalez, setting forth the 
great injuries that would result from its execution, and 
showing that even were it to be insisted upon, it was 
undesirable in every way to confide its execution to 
O'Neille. The President, Gonzalez forwarded these ob- 
servations to the Minister of War, in the despatch of 
June 3, 1804 (Doc. No. 195), making them his own and 
stating that they were in accord with his information 
and the documents which he had before him. 

The Brigadier Abarca declared that O'Neille's sole pur- 
pose was to carry on contraband trade on a large scale, 
as he already had been doing (or protecting it) with 
Jamaica; that for this purpose he falsified the facts 
and contradicted what he had said in writing; that the 
accepted plan of O'Neille was the very same which he 



148 

had proposed to them, the captain-general and himself^ 
and which they had rejected with indignation; that the 
plan conceived by O'Neille was impracticable and its 
realization could only be considered as the work of a 
crazy person, or of expert smugglers; and that the plan 
which ought to be pursued for the colonization of the 
Mosquito Coast was another and very different one, the 
one which he advised — slow but sure. 

vSo energetic an attack by the Captain-General of 
Guatemala took away all the moral authority of the Royal 
order of 1803, and left it but a dead letter. 

The Captain-General of Guatemala kept right on acting 
in the matters relating to the Mosquito Coast, as is proved 
by numerous documents and especially by the Royal order 
of November 13, 1806 (Doc. No. 197). That official had 
applied to the Secretaryship of vState and War (Doc. No. 
193), in a complaint against the Intendant of Comayagua 
(Honduras), who claimed to have the administration of 
the establishments of the Mosquito Coast, saying that 
they had "always depended immediately upon this 
Captaincy-General," and the Royal order says: 

"The King having been informed by the letters 
of Your Worship * * * and by the documents 
accompanying them. * * * His Majesty has re- 
solved that Your Worship is the one who must have 
sole charge and the absolute cognizance of all the 
affairs that arise in the Colony of Trujillo and other 
military posts of the Coast of Mosquitos, relating 
to the Jour matters referred to (Justice, Police, 
Finance and War), in compliance w4th the Royal 
Orders issued since the y^ear 1762, which authorized 
you to occupy, defend and settle that Coast, until 
that object being in whole or in part secured, His 
Majesty may deem it suitable to change the actual 
system * * *." 



149 

So that, even supposing that the Royal order of 1803 
ever had any legal value and could have been put in^o 
practice, it was abrogated by this order of 1806 which 
retained the Mosquito Coast under the dependency of 
Guatemala, in the four departments of Justice, Police, 
Finance and War. 

By Royal order of March 31, 1808 (Doc. No. 198), 
addressed to the Captain-General of Guatemala in reply 
to his communications of January 3 and June 18, 1805, 
it was provided that the San Juan River of Nicaragua 
should remain open to navigation and commerce; that, 
in order to promote the clearing and cultivation of the 
immediate lands the same favors were granted to their 
inhabitants that were conceded to the new settlers of the 
Mosquito Coast by the Royal order of November 20, 
1803 (a different order from that of the same date which 
is invoked by Colombia; Doc. No. 474) ; that, for a period 
of ten years there was to be exemption from duties and 
tithes on the products that might be harvested within a 
distance of ten leagues from the river, on either bank 
thereof; and that the estabUshment of a settlement should 
be undertaken near the said San Juan de Nicaragua River. 
Those ten leagues of the coast to the north lay in what 
was called the Mosquito Coast; and the ten on the south 
belonged to Costa Rica. This Royal order of 1 808 proves, 
therefore, that the jurisdiction of the Captaincy-General 
of Guatemala continued upon the Mosquito Coast, at the 
mouth of the San Juan River, and also in Costa Rica, 
and that the Royal order of 1803, did not operate against 
this jurisdiction. 

The Valley and Coast of Matina, which Colombia 
claims as embraced within the Mosquito Coast, continued 
under the command of the Governor of the Province of 
1607 — 12 



150 

Costa Rica, as is shown by several orders which its 
governor, at that time Don Tomas de Acosta, gave to 
the Judge and Comandantc of Matina, and the communi- 
cations of this Governor to the Captain-General of Guate- 
mala concerning matters in that district (1808 and 1809). 
The official communication of Don Tomas de Acosta to 
said captain-general, of September 20, 1809 (Doc. No. 
199), merits special attention. In that communication 
he gives an account of the letter which the Governor of 
the Island of San Andres had written to him, telling him 
that the Government of Matina belonged to that of San 
Andres, by reason of its command of the coast from Cape 
Gracias a Dios as far as the Chagres River; against this 
Acosta protested, on the ground that it was contrary to 
immemorial tradition, and he ended by stating to the 
Captain-General as follows: 

"In this Government the Royal Orders of 1803 and 
1807 which O'Neille cites do not exist; wherefore and 
perhaps because he has not given to them the proper 
understanding, I will continue without change in the 
command of this province and its coasts, until Your 
Worship may otherwise provide or consult His 
Majesty in order to avoid disputes." 

On November 7, 1809, the Captain-General of Guate- 
mala, replied to the Governor of Costa Rica stating that 
the Governor of the Island of San Andres had no authority 
whatever over the Coast of Matina (Doc. Nos. 200 and 
201). 

The Cortes of Cadiz, on the petition of the Deputy for 
Costa Rica, Don Florencio del Castillo, without opposi- 
tion by the representatives of the Viceroyalty of Santa 
Fe, and after the Council of the Regency had been heard, 
resolved by decree of December i, 181 1 (Doc. No. 204), 



151 

that the Port of Matina should be opened, and exemp- 
tion from duties on exports granted for ten years. The 
Captain-General of Guatemala referred the decree to the 
Governor of Costa Rica, on May 25, 181 2, because of the 
fact that the Port of Matina was under his jurisdiction, 
and the latter governor replied, on July i, that he was 
fully advised of this sovereign provision for its execution 
(Doc. No. 208). 

To summarize: neither the Mosquito Coast, nor the 
coastal portion of the Province of Costa Rica, passed to 
the Viceroyalty of Santa Fe, but continued as a depend- 
ency of the Captaincy-General and Audiencia of Guate- 
mala in the Viceroyalty of New Spain. The only effect 
produced by the Royal order of November 20, 1803, was 
the creation of the government of O'Neille which was 
confined to the Islands of San Andres. Those islands 
having been the subject of continuous dispute between 
the Spanish and the English, were left to Spain until the 
struggles for independence. In 181 8 a band of pirates 
commanded by Captain Louis Aury, took possession of 
them and held absolute sway for three years; and in 1822 
Colombia occupied them, not by rights derived from the 
Spanish colonial regime, but by having driven off the 
pirates. The dependency of the islands could not affect, 
and did not affect, the Province of Costa Rica. 



III. 

LAST YEARS OF SPANISH SOVEREIGNTY. 

I. First Period of the Constitutionai, Regime in 

Spain. 

(a) General Organic Provisions. 

Spain being under invasion, in 1808, by the troops of 
Napoleon, and Fernando VII absent from the country, 
the Supreme Central Junta governed in the Peninsula 
and in America, and recognized the existence of the Prov- 
ince of Costa Rica. This is shown by the summons for 
the election of deputies in 1809, in which that province 
took part (electing for the extraordinary Cortes, Don 
Florencio del Castillo) and by the appointment of Don 
Juan de Dios de Ayala as governor of that province iniSio. 

America had a numerous and brilliant representation 
in the Cortes of Cadiz which established the constitutional 
regime in Spain; indeed, several of its Deputies — among 
them the same Don Florencio del Castillo — were elevated 
to the Chairmanship in recognition of their merit, and out 
of respect for America whose provinces were always looked 
upon by the Cortes as sisters of those of the Peninsula and 
subsisting under a common politico-administrative system. 

By the side of Don Florencio del Castillo, Deputy for 
Costa Rica, were the representatives of Guatemala, 
Nicaragua, Panama and New Granada — Larrazabal, 
Lopez de la Plata, Ortiz, Mexia Lequerica and Count of 
Pufionrostro ; and when we see that every one assented 

(152) 



153 

to the declarations made and the resolutions passed in 
that body with respect to Costa Rica, we may safely 
assume that they responded to the actual facts and to the 
conveniences of the provinces interested. 

The Constitution of Cddiz, of 1812, in its Art. 10 (Doc. 
No. 205), maintained the separation of Guatemala 
(which is expressly mentioned) and New Granada (Santa 
Fe), and preserved the territorial division existing in the 
Spanish dominions, until another more convenient divi- 
sion should be made by means of a constitutional law, 
as declared in Art. 11 (Doc. No. 205). 

After the Constitution -had been adopted the repre- 
sentative Cortes passed two important decrees of a legis- 
lative character; one relating to judicial organization and 
the other concerning provincial government. 

The Decree of October 9, 181 2 (Doc. No. 210) pro- 
vided in Art. i that until a new division of the territory 
should be made there would be an audiencia in each of 
the provinces that then had one, and mentioned as still 
subsisting, the Audiencias of Guatemala and Santa Fe; 
it declared in Art. 2 that those audiencias should retain 
the territory they then had, and the same residential seat. 
The Province of Costa Rica continued, then, to belong to 
the Audiencia of Guatemala, and preserved the same 
eastern boundaries, which w^ere the boundaries of that 
audiencia with that of Santa Fe. 

The Decree of May 24, 181 2 (Doc. No. 207), estab- 
lished a new provincial regime, and created the superior 
political chiefs of the provinces and the provincial depu- 
tations, as provided for in the Constitution. In pursu- 
ance of that decree there was to be a provincial deputation 



154 

in each of the provinces especially mentioned in Art. lo 
of the Constitution and therefore in Guatemala; but in 
Guatemala the decree provided, there was to be another, 
to be established in Leon de Nicaragua "with the Province 
of Costa Rica.' ' This provincial deputation was called that 
of Nicaragua and Costa Rica, 

(b) Continuation of the dependency of the northern coast of 
Costa Rica upon the government of that province. 

Although in the Ught of such provisions of a general 
organic character, it clearly follows that the Province of 
Costa Rica in no way depended upon Santa Fe or New 
Granada, we shall have to insist, as regards this northern 
coast (which Colombia pretends to consider as embraced 
in the Mosquito Coast), upon adding more proofs of the 
inefficacy and abrogation of the Royal order of San 
Lorenzo, of November 20, 1803. 

We have already shown how the extraordinary Cortes, 
at the petition of Don Florencio del Castillo, Deputy for 
Costa Rica, decreed the opening of the Port of Matina, 
belonging to that province, on December i , 1 8 1 1 , and how 
its governor, Don Juan de Dios de Ayala, by order of the 
Captain-General of Guatemala, stood ready to carry that 
decree into effect. 

The governor continued to act in connection with the 
Captain-General of Guatemala in everything that related 
to Matina, as shown by his communications of August 5, 
and October 5, 18 13 (Doc. Nos. 212 and 213). 

The Provincial Deputation of Nicaragua having been 
charged with making the provincial division of districts, 
resolved, as its secretary certifies, to propose the creation 



155 

of two political sub-chiefs; of these, according to the 
official communication of its president of April 27, 181 4 
(Doc. No. 214), to the Minister of Ultramar (Affairs 
Beyond the Seas), one was to be assigned to Granada, 
where the vessels unload which arrive at the port of the 
San Juan River, on one of whose banks it was suggested 
to locate a settlement of 300 families — and the other in 
Cartago, capital of the Province of Costa Rica, because of 
its extent * * * "and because upon its coasts, it has 
the ports of Punta de Arenas on the south and Matina on 
the north." This resolution demonstrates that the Mos- 
quito Coast continued under the jurisdiction of Nicaragua, 
and the coast of Matina under that of Costa Rica, and that 
the establishment of settlements on the San Juan River, 
referred to in the Royal order of March 31, 1808 (Doc. 
No. 198), proceeded in due course. 

By Decree of April 29, 1814 (Doc. No. 215), the Cortes 
resolved to open the port of Punta de Arenas, located to 
the south "of the Province of Costa Rica." 

(c) Description of the Province of Costa Rica in the Pro- 
posal Made by its Deputy in the Cortes for the Crea- 
tion of a Bishopric. 

In the session of the Cortes of May 31, 181 3, presided 
over by Don Florencio del Castillo, Deputy for Costa 
Rica, the proposal of the latter relating to the creation of 
a Bishopric of that name was read; it begins as follows: 

"In the Committee on Affairs Beyond the Seas 
there is a Memorial from the Noble Municipal 
Council of the city of Cartago, capital of Costa Rica, 
which asks for the separation of the said province from 
the Bishopric of Leon de Nicaragua to which it is now 



156 

added, to the end that a separate diocese being created 
in Costa Rica, there shall be erected and established 
an Episcopal See in the aforesaid city of Cartago." 

In presenting its arguments, the petition describes the 
province in general, as follows : 

"Costa Rica has for the boundaries of its territory 
the River Chiriqui, which separates it from the 
Province of Panama, and the River Salto, which 
divides it from that of Nicaragua, between which two 
provinces it is located. It has for its boundaries 
on the north and the south the Atlantic Ocean and 
the Pacific Ocean. From one of the rivers that are 
designated to the other, it is more than 150 leagues, 
by very rough roads and almost impassable on account 
of the multitude of mountains and the large rivers 
that must be crossed. The distance from one sea to 
the other is not uniform, but the average is about 70 
leagues." 

The petition goes on to speak of settlements in that 
province of the number of races among its inhabitants, 
and sums up by saying : 

"For these reasons Costa Rica was always considered 
and held since its discovery as a province separate and 
independent from the others; governed in political 
and military affairs by a chief with the title of Gov- 
ernor and Comandante de las Armas, who recognized 
no other dependency than upon the Audiencia and Cap- 
taincy-General of Guatemala; so that it is only in eccle- 
siastical matters that it has been added to the diocese 
of Nicaragua." 

It is impossible to describe in a more concrete and posi- 
tive manner the status of the Province of Costa Rica 
in 1 8 13; and that status conforms perfectly with the status 



157 

which, according to the evidence adduced from the'grtat 
mass of official documents we have cited, always subsisted 

(2) AbsoIvUTE Government of Fernando VII. 

Fernando VII on his return to Spain, in 18 14, after the 
evacuation of the Peninsula by the French, annulled all 
the acts of the constitutional regime, and re-established 
the absolute government that had previously existed. 

He left Don Juan de Dios de Ayala as Governor of the 
Province of Costa Rica, and, in 1818, appointed to that 
office, Don Bernardo Vallarino. On the death of the 
latter, the Audiencia of Guatemala filled the office tem- 
porarily, by the appointment of Don Juan Manuel de 
Canas. 

The Governor of Costa Rica continued in authority on 
the coast and at the Port of Matina, keeping in communi- 
cation with the Captain-General of Guatemala, as may 
be seen by various official communications from 18 15 to 
1819 (Docs. Nos. 218, 219, 220, 225, 226, 227 and 229). 
By Royal cedula of May 26, 1818 (Doc. No. 228), addressed 
to the Captain-General of Guatemala, the King com- 
manded a report to be made in regard to the amendment 
of the impost upon cacao derived from the Valley of 
Matina. 

The territory of Talamanca continued to belong to the 
Province of Costa Rica, as shown by the account given 
by Fray Ramon Roxas, Comisario prefecto of the Missions, 
to the Bishop of Nicaragua, dated July 3, 1815 (Doc. No. 
217) ; in this he tells the Bishop that " * * * the reduc- 
tion of Talamanca is upon the borders of this diocese, on 
the side adjacent to that of Panama," and relates how 
the governors of Costa Rica protect the missions of 
Talamanca. 



158 

Although the Cortes was dissolved, Fernando VII by 
Royal order of June 17, 18 14, exhorted those who had 
been deputies of the American provinces, to submit to 
him the petitions that they had pending, and any other 
matters pertaining to their respective provinces. This 
was done by Don Florencio del Castillo, ex-Deputy for 
Costa Rica, in his statement to the King of July 1 2 of the 
same year (Doc. No. 216), in which he reproduces what 
he had presented to the Cortes on May 31, 18 13, repeating 
the paragraphs that we have transcribed regarding the 
limits of Costa Rica and insisting that it had always been 
a province separate from the rest, ruled by a governor 
dependent solely upon the Captaincy-General and Au- 
diencia of Guatemala. 

By Royal cedula of May 26, 181 8 (Doc. No. 627), in 
accord with the Council of the Indies, Fernando VII 
commanded the Captaincy-General of Guatemala to 
report concerning the proposal of Don Florencio del 
Castillo respecting the creation of a Bishopric of Costa 
Rica, and took counsel with the Intendant and the Bishop 
of Nicaragua, the Fiscal (Attorney General) and the 
Audiencia of Guatemala, in order to determine what was 
best to be done. 

(3) Second Constitutional Period. 

The Constitution of Cadiz was re-established in 1820, 
and with it the Provincial Deputation of Nicaragua and 
Costa Rica; whereupon that deputation on December 13, 
1820 (Doc. No. 476), again took up the proposition for 
the division by districts (enumerating the principal places 
of each) and the creation of political sub-chiefs. In the 
note accompanying the communication concerning those 
matters addressed to the Minister of Affairs Beyond the 



159 

Seas, it is shown that the Province of Costa Rica was 
under the charge of a political and military governor 
independent of the Governor of Nicaragua, save in the 
matter of Hacienda (Finances) , of which a sub-intendant 
had charge under the Ordinance of 1786, and he depended 
upon the Intendancy-General of Nicaragua. By Royal 
order of February 27, 1822, it was directed that this plan 
be forwarded to the Minister of the Interior for investi- 
gation. 

In the session of the Cortes of May 17, 1821, Don Jose 
Mariano Mendez, Deputy for one of the Guatemala 
districts, presented a memorial of which he was the author, 
entitled, "Memorial of the Political and Ecclesiastical Con- 
dition of the Captaincy -General of Guatemala, a Plan for 
the Division into Kight Provinces, With as Many More 
Provincial Deputies, Political Chiefs, Intendants and 
Bishops," which memorial according to the records, was 
favorably received by the Cortes and referred to the 
Committees on Provincial Deputations, Ecclesiastical 
Affairs and Finance. 

This very interesting memorial (Doc. No. 230) begins 
by saying: 

"Guatemala, situated in Northern America, longi- 
tude from 282 degrees to 295 degrees, and latitude 
from 8 degrees to 17 degrees, has a length of 13 
degrees, which makes 227 CastiHan leagues of 17I 
to the degree; and by road it is calculated at more 
than 700 leagues from Chilillo, the end bordering 
with the Audiencia of Mexico, as far as Chiriqui, 
the frontier line of the jurisdiction of the Audiencia 
of Santa Fe de Bogota. In width it is 9 degrees, from 
the southern territories of Costa Rica to the northern 
ones of Chiapa. * * * j|- borders on the west 
with the Intendancy of Guaxaca; on the east with 



160 

the Province of Veragua, district of Tierra Firme and 
vSanta Fe; on the north with the Ocean and on the 
south with the Pacific." 

It then goes on to explain that — 

"* * * throughout the extent of this Kingdom 
there is but one Audiencia, which sits in the capital 
of Guatemala, with its Captain-General, who has a 
large number of subordinate chiefs for the political 
and military administration and government of the 
fifteen provinces into which it is divided." 

This number is made up of eight alcaldias mayores, two 
corrcgimicntos, the Government of Costa Rica and the 
Intendancies of Nicaragua, Chiapa, Comayagua de Hon- 
duras and San Salvador. 

It indicates the inconveniences of this division and 
suggests that eight provinces be created, each with its 
respective civil and ecclesiastical authorities. 

OJ the Province of Costa Rica — the first of the eight — 
he speaks as follows: 

"This city (of Cartago) is the capital of the 
Province of Costa Rica, situated in the center, at 
80 leagues from the frontier line of Nicaragua and 
as many more from that of Costa Firme, jurisdiction 
of Veragua, and at 30 leagues from the Port of 
Esparza on the South Sea, and at a like distance 
from that of Matina, on the North Sea; so that the 
total length is 160 leagues and the width 60. =;= * * 
In 1 81 3, its Deputy in the Cortes endeavored to have 
it erected into a Bishopric =>= * * and this same 
effort was repeated in the present Cortes, asking for 
a Provincial Deputation * * *; its better admini- 
stration and government can only be attained by 
means of a Provincial Deputation, Political Chief, 
• Intendant, University, College and Bishop without 
canons." 



IV. 

THE INDEPENDENCE AND THE "UTI POSSIDETIS.'* 

(i) Independence of the Provinces of Guatemai^a 
AND New Granada. 

During this second constitutional period, Costa Rica 
was emancipated from ttie sovereignty of Spain. 

The news of the Spanish revolutionary movement of 
1820 revived the insurrection of Mexico which had been 
suppressed; General Iturbide placed himself at its head 
and on February 24, 1821, put forth the manifesto of 
Iguala (Doc. No. 243), proclaiming the independence of 
Mexico. Following this example, Guatemala also de- 
clared itself independent of Spain, in September, and 
Costa Rica, in October, of the same year (the governor 
then being Don Manuel de Caiias). 

General Iturbide caused himself to be proclaimed 
Emperor of Mexico, with the name of Agustln I, in May 
1822. The provinces of the old Captaincy-General of 
Guatemala joined the new Mexican Empire; but on the 
dissolution of the latter, in March, 1823, they united and 
sent representatives to a constituent assembly which, in 
July of that year, ratified their independence from both 
Spain and Mexico. That assembly adopted the Consti- 
tution of the United Provinces of the Center of America, 
of November 22, 1824 (Doc. No. 254), thus forming a 
republican confederation composed of five States : Guate- 
mala, Salvador, Honduras, Nicaragua and Costa Rica, 
each of which had its own constitution. 

This confederation lasted for fourteen years, until the 
federal compact, having been broken by the congress of 

(161) 



162 

1838, there were born the five republics that now bear 
those names, each with an entirely independent Hfe. 

The insurrectionary movement of the provinces of the 
Viceroyalty of New Granada was distinct. It had its 
principal center in Santa Fe de Bogota which, in July, 
1 810, rose against the viceroy and attempted to form a 
confederation of those provinces. The movement, how- 
ever, failed of success until Bolivar, who had achieved 
the independence of Venezuela, placed himself at its head. 
The Congress of Angostura (in Venezuela), of February 
19, 1 819, decreed the formation of the Republic of Colom- 
bia, with the provinces of Venezuela and New Granada. 
The Congress of Rosario de Cucuta approved the Con- 
stitution of this Republic on August 30, 1821. 

The Province of Panama, where the Viceroy, Samano, 
was established, was proclaimed independent of Spain, 
in November, 1821, and agreed to cast in its lot with the 
Republic of Colombia. 

So, that, in November of 1S21, the sovereignty of Spain 
ended in the two provinces of Costa Rica and Panama, 
bordering on the two viceroyalties and audiencias, each, 
on its emancipation, attaching itself to those provinces 
with which it had been united — Costa Rica with the 
Guatemala provinces ; Panama with those of AVw Granada. 

(2) The Principle of Colonial "Uti Possidetis." 

" Uti possidetis" was the term used in the Roman law 
to designate the interdict of retention of possession which 
the praetor pronounced, in the interest of the holder of 
property, to protect him in his possession so long as he 
was not defeated in a trial of ownership, using a long 
phrase which was condensed into these words, ' ' uti 



163 

possidetis, ita possideatis;" that is, "as ye possess, so may 
ye possess (so may ye continue possessing)." 

This term, "uti possidetis," having been adopted into 
international law, serves to designate the principle of 
"the conservation of the possessory status" in interna- 
tional relations. The principle of the "colonial uti possi- 
detis" signifies the recognition of the possessory status in 
which the provinces or regions were found when they 
were colonies, and the continuity thereof after they had 
been emancipated and formed independent states. 

The importance of this principle may be easily under- 
stood in the demarcation of the states that sprang into 
existence in America upon the cessation of Spain's sover- 
eignty. Those states had no other history than that of 
the colonial period; but during that period they had 
formed themselves into communities, with their own 
customs, traditions and social and administrative insti- 
tutions that differentiated each from the others. It was 
but natural, therefore, that they should continue to live 
as they had lived — in the same territories and undergoing 
no other change than that involved in the acquisition of 
sovereignty, or such changes as they might wish to estab- 
lish in the exercise of such sovereignty. 

All the territory of the Indies had been divided by the 
Sovereigns of Spain into viceroyalties, audiencias and 
governments of various classes, within the respective 
demarcations of which, those communities were formed, 
each with vast areas to be settled. The provinces emanci- 
pated themselves as best they could; those of one great 
circumscription united or passed voluntarily from one 
circumscription to another, or separated among them- 
selves, and constituted themselves into independent re- 
publics. When the common sovereign power was with- 



164 

drawn, it became indispensably necessary to agree on a 
general principle of demarcation, since there was a uni- 
versal desire to avoid the resort to force, and the principle 
adopted was the colonial uti possidetis; that is, the prin- 
ciple involving the preservation of the demarcations under 
the colonial regime corresponding to each of the colonial 
entities that was constituted as a state. Thus, also, it 
prevented the seizure by foreign nations of any of those 
vast unsettled territories. 

The principle of uti possidetis was introduced recipro- 
cally into the relations of the American repubUcs of 
Spanish origin by the Treaty of Bogota, of 1811, entered 
into by the United Provinces of Venezuela and the United 
Provinces of New Granada; in that instrument they 
undertook to recognize and respect as the boundaries 
between them those that pertained to the Captaincy- 
General and Viceroyalty bearing those names — a principle 
that was extended over the whole of Tatin America. 

But if there was general accord in the acceptance of 
that principle, difficulties arose in its application, mainly 
concerning the character of the possessory status and the 
date to be taken, each republic insisting upon what was 
most desirable for its own interests according to the 
situation in which it found itself. 

(3) Application of the Principle. 

Further expositions of this doctrine of the uti possidetis, 
which pertains to the international law of Latin America, 
is unnecessary, since we address ourselves, in this opinion, 
to the colonial Spanish law ; still we set forth the situation 
of Costa Rica in order to apply that principle. 

The fundamental law of the State of Costa Rica, of 
January 21, 1825 (Doc. No. 255), expressed perfectly the 



165 

equation between its territory and that of the Spanish 
province of that name ; it fixed its Hmits in the same way 
that they existed in fact and law, at the moment when the 
sovereignty of Spain came to an end. In its Article 15 
the law provided: 

"The territory of the State is now extended from 
west to east, from the River Salto, which divides it 
from Nicaragua, to the River Chiriqui, the end of the 
Republic of Colombia; and north- south from one 
vSea to the other, its limits being on the north at the 
mouth of the River San Juan and the Escudo de 
Veragua, and on the south at the outlet of the River 
Alvarado and that of Chiriqui ^ 

The expression "now," used in connection with Nica- 
ragua was adopted because the addition of Nicoya was 
expected, that province having manifested its desire to 
unite with Costa Rica; and it was in fact so united by 
decree of the Federal Congress of the Republic of Central 
America of December 9 of the same year (Doc. No. 258). 

That fundamental law of Costa Rica harmonizes with 
the law of territorial division of the Republic of Colombia, 
of June 25, 1824 (Doc. No. 251), which had respected 
the Umits of the former State. Colombia divided her 
territory into twelve departments, subdivided into prov- 
inces composed of cantons. The Department of the 
Isthmus was made up of two provinces: That of Panama 
and that of Veragua. The Province of Veragua was 
divided into four cantons — Santiago de Veragua, Mesa, 
Alanje and Guaymi. All these cantons were located to 
the east of Costa Rica, including that of Guaymi which 
was another portion of the valley of that name, and had 
for its capital, the town of Remedios. 

A few days after this law was published, the Govern- 
ment of Colombia issued the Decree of July 5, 1824 (Doc. 
1607—13 



^ 166 

No. 252), declaring illegal "every enterprise which is 
undertaken to colonize any point of that portion of the 
Coast of Mosquitos from Cape Gracias a Dios, inclusive, 
toward the River Chagres, which belongs to the Republic 
of Colombia, in virtue of the formal declaration made at 
San Lorenzo on November 30, 1803." It was sought by 
this action to give life to the Royal order relating to the 
Government of the Island of San Andres, which had died 
still-born and to which no one had paid any attention 
during the colonial period. The nullity and inefficacy of 
that Royal order with respect to Costa Rica we have 
already demonstrated. And it must be observed that 
it was not taken into consideration in making the law of 
territorial division which was prepared and sanctioned at 
that time. 

On March 15, 1825 (Doc. No. 257), was signed in 
Bogota the treaty between the Republic of Colombia and 
the Federal Republic of Central America of which the 
State of Costa Rica formed a part, and by which the latter 
republic bordered on the former. The parties mutually 
guaranteed the integrity of their respective territories "as 
they existed naturally prior to the present war of inde- 
pendence," and obligated themselves to respect their 
boundaries ''as they nou) exist;" they also agreed to the 
reservation, "as soon as circumstances will permit, to 
settle in a friendly manner the line of demarcation between 
the two states, or whenever one of the parties shall be 
disposed to enter on this negotiation." 

In the conferences held during the negotiation of that 
Treaty of 1825 the Minister of Foreign Relations of 
Colombia, Don Pedro Gual, proposed a change in the 
existing boundaries based on the proposition to give effect 
to the Royal order of 1803. The Minister Plenipotentiary 



167 

of Central America, Don Pedro Molina, replied that he 
was without instructions on this point. "Well, then, 
responded Senor Gual, as to boundaries, it is necessary 
to hold to the uti possidetis of 1810, or 1820, as may be 
desired. Senor Molina having acquiesced, Sefior Gual 
was charged with preparing the articles arranged at the 
time of making this project." It is thus set forth in the 
protocol of the conference between the two representatives 
of March 4, 1825 (Doc. No. 256). 

From the foregoing it appears that both parties were 
agreed in recognizing, in 1824 and 1825 — three or four 
3^ears after the independence — as the boundaries existing 
in fact between the Spanish Provinces of Costa Rica and 
Veragua at the moment of independence, the same boun- 
daries which they promised to respect and mutually 
adhere to. The Colombian law of territorial division, 
of June 25, 1824, did not go beyond the boundaries of 
Veragua; the fundamental law of Costa Rica of January 
21, 1825, included from sea to sea, as far as the Bscudo de 
Veragua and the Chiriqui (Viejo) River; and the Treaty 
of Bogota of May 15, 1825, preserved the existing bound- 
aries, without making the changes which the Minister 
of Colombia had claimed on the authority of the Royal 
order of 1803. 

The principle of uti possidetis, then, was accepted by 
corhmon consent in the sense of preserving the possessory 
status, Colombia declaring that whether the year 18 10 
or 1820 be adopted in connection with that status should 
be "as it might be desired to understand it." This is 
easy enough to understand because the change proposed 
by Colombia not having been adopted, it was a matter 
of indifference which date should be selected, that posses- 
sory status being the same in both periods. 



168 

But Colombia's ambition to extend herself into Central 
America, grew apace. Taking advantage, therefore, of 
the discord that prevailed among the States of the 
Federation, in 1836, she treated the territory of Bocas del 
Toro and all its islands as her own, and occupied them 
with force. To justify such ambitions and the acts that 
were committed in carrying them out, Colombia resorted 
to the Royal order of vSan Lorenzo, of 1803, on the assump- 
tion that it constituted the ;/// possidetis dc jure of 1810^ 
and that under its sanction she was entitled to the do- 
minion (which had pertained to the Viceroyalty of Santa 
Fe) over the Atlantic coast from Cape Gracias a Dios 
toward the Chagres River, including the Matina Coast. 

Colombia, therefore, interpreted the principle of uii 
■possidetis in the sense of the preservation of the right of 
ownership instead of that of possession; whereas, the fact 
is that that principle, as its name indicates, and in con- 
sonance w4th the interdict from which it is derived, 
requires as an indispensable condition "the fact of being 
in possession." The right to property, unaccompanied by 
possession, may be ground for reeovery, but never for the 
interdict of retention or the right to preserve possession 
that is lacking. 

The Republic of Colombia, by combatting the inter- 
pretation of the iiti possidetis in the sense of preservation 
of the possessory condition dc facto, and alleging in favor 
of herself rights of ownership founded upon laws and 
Royal orders, recognized that the Viceroyalty of Santa Fe 
had not been iji possession of the territories which she has 
claimed as its heir. 

Colombia asks in the arbitration that the question of 
boundaries with Costa Rica be decided by the principle 
of itti possidetis de jure, asserting in her documents that 



169 

according to the Recopilacion de Indias the Government 
of Costa Rica must have belonged to that of Tierra Firme 
by having been embraced within the Province of Veragua, 
which belonged to Tierra Firme, and that under the Royal 
order of 1803, the Government of the Mosquito Coast and 
that of the Atlantic coast of Costa Rica must have be- 
longed to the Viceroyalty of Santa Fe. But she does not 
say that the Government of Tierra Firme had jurisdiction 
over Costa Rica subsequently to the creation of the Audi- 
encia of the Confines, or of Guatemala, nor did the Vice- 
royalty of Santa Fe exercise even partial control therein; 
and she could not state this, since it is entirely contrary 
to the truth of history. 

The territory and boundaries possessed by Costa Rica 
at the moment of her emancipation, she held by virtue 
of legal titles, having been definitively constituted by her 
historic evolution as a province, and having lived con- 
tinuously under that legal status, sanctioned and confirmed 
by a long series of acts of jurisdiction and sovereignty. 

That is why Costa Rica, although she understands that 
the uti possidetis cannot be conceived without possession, 
has accepted in this arbitration the so-called uti possidetis 
de jure, because she has in her favor the uti possidetis not 
only de jure, but de facto. The description of its territory, 
which the State of Costa Rica gave in Art. 15 of its funda- 
mental law of January 21, 1825, accords with the descrip- 
tions we have given of the territory embraced therein in 
fact and law, when it was a Spanish province, to wit, from 
sea to sea, from Nicaragua to the Escudo de Veragua on 
the north and the mouth of the Chiriqui {Vie jo) on the 
south. Such was its possessory status when, on the 15th 
of March of the same year, in Bogota the treaty was 
signed by the Republic of Colombia and the Federal 



170 

Republic of Central America; in that treaty the bound- 
aries that "then existed" were recognized, and the parties 
mutually guaranteed their respective territories. 

Colombia claims that the iiti possidetis of all vSpanish 
America refers to the year 1810, because it was then that 
the insurrectionary movement began which led to the 
Treaty of 181 1. In that treaty the provinces of Venez- 
uela and those of New Granada undertook to recognize 
and to respect as boundaries between themselves those 
belonging to the captaincy-general and viceroyalty. But 
the principle of uti possidetis having been proclaimed to 
enable the new states to accept as boundaries those which 
their respective provinces had possessed when they were 
emancipated and thus establish the continuity of posses- 
sion, it could not be applied to all as of the same date, 
but as of the date of the emancipation of each province 
or region which became a state, for until their emanci- 
pation they continued under the sovereignty of Spain, 
who could freely dispose of them. 

The insurrectionary movement of 1810 was repressed 
by Spain, and this same Republic of Colombia was not 
born until December, 181 9, nor was she definitively con- 
stituted as a sovereign state until August, 1821. The 
Province of Guatemala proclaimed itself independent on 
September 15, 1821; those of Costa Rica and Panama, 
in October and November of the same year. Therefore, 
if a common date be adopted for the titi possidetis of the 
provinces that figure in this question of boundaries, it 
must be the year 1821. 

Costa Rica very properly insists on the uti possidetis 
of 1 82 1, although she would be under no disadvantage 
were that of 18 10 adopted, for her possessory status as 
to boundaries was in fact and law the same in one year 
as in the other. 



RESUME AND CONCLUSIONS. 



(1) R^SUMfe AND GENERAI. CONCI.USIONS OF ThIS OPINION 

(2) Agreement Respecting the I/Egai. Bases for the 

Determination of the Case. 

(3) Question of Territoriality. 

(4) Question of Delimitation; 

(a) Costa Rica's Evidence. 

(b) Colombia's Evidence. 

(c) Special Consideration of the Boundaries of the 

Diikedom oj Veragua. 

(5) Final Deductions. 



(i) Resume; and General Conclusions of this Opinion. 

We believe that we have demonstrated the three fol- 
lowing propositions, which constitute the three parts into 
which we have divided this work. 

1. The Province of Costa Rica and the Province of 
Veragua were definitively established and marked out by 
the Crown in the XVIth century, in the year 1537. 

2. The Recopilacion de Indias respected and confirmed 
the existence and demarcation of Costa Rica. 

3. Costa Rica cont'nusd in the same legal status of 
differentiation from Veragua, from the publication of 
the Recopilacion down to the independence. 

These propositions are the synthetic resume and the 
general conclusions of our opinion. 

The clearness with which we think we have presented 
the facts and the law relating to each of these proposi- 

(171) 



172 

tions, by means of the appropriate headings and sum- 
maries, as also the categorical form used in the statement 
of our opinion upon each of the questions embraced in 
each proposition, renders unnecessary a fuller resume or 
a more extensive statement of the conclusions of this 
opinion; we respectfully refer to the discussions of the 
points in the text. 

We shall, however, state our conclusions as to the 
results of the arguments made in the arbitral proceedings 
on the three questions following, which are the very 
essence of the case — the legal basis for its determination, 
territoriality and the boundaries properly so-called. 

(2) Agreement Respecting the Legal Bases for the 
Determination of the Case. 

We have just seen that both parties are agreed in 
accepting, as the legal basis for the determination of the 
case, the principle of the colonial uti possidetis, as of the 
year 1810, although Costa Rica holds, as do we, that it 
ought to apply to the year 1821. And we have also seen 
that Costa Rica finds no difficulty in admitting the appli- 
cation of this principle from the point of view of law (de 
jure), but it must be jointly with the fact of possession 
{de Jacto); for we consider that without possession the 
uti possidetis is inconceivable. Both parties are also 
agreed in recognizing as a legal basis what was provided 
by the Reco pilacidn de Indias and the Crown of Spain in 
the exercise of the legislative power. The difference of 
opinions consists in the fact that Colombia denies legal 
force to the demarcatory provisions prior to the Recopi- 
lacidn, conceding it to others which are subsequent, whilst 
Costa Rica maintains the contrary, according to the 
character of the acts under discussion. 



173 

In our opinion the Recopilacion de Indias is really the 
axis of the jurisprudence with which we are concerned. 
The history of Spanish colonial law is divided into three 
periods: The law prior to the Recopilacion, that estab- 
lished by the Recopilacion and that subsequent thereto. 
To these three periods of that history we have made the 
three parts of our opinion correspond. Of the law prior 
to the Recopilacion, not only that which, as Colombia 
assumes, is expressly re-enacted, is valid, but also that 
which is respected, confirmed or admitted as supplemen- 
tary. Of the laws provided after the Recopilacion only 
those are valid which conform to the laws in that compila- 
tion, or their amendments, under the conditions and pro- 
cedure established by it. 

(3) Question o^ TerritoriaivITy. 

The legal criterion under which the case must be 
decided having been established, it is important to dis- 
tinguish two questions which have been confused under the 
common designation of "question of boundaries:" That 
of territoriality and of delimitation; that is to say, the 
question of ownership of a determined territory (a geo- 
graphical, political or administrative unit), and that of 
the marking out of the divisional line which separates it 
from another or several other territories. 

It clearly results from the argument in the arbitral 
proceedings, that Colombia does not treat the question 
of boundaries properly speaking, but that of territoriality. 
Colombia denies the territoriality of Costa Rica: first, 
entirely, on the authority of the Recopilacion de Indias; 
and afterwards, partially, invoking the Royal order of 
1803. In order to deny it entirely, she makes use of a 



174 

geographical equivoque based upon the name of Veragiia 
by taking for the "Province of Veragua" the primitive 
Veragua. In. order to deny that territoriahty partially, 
she gives to the Mosquito Coast an extent it did not have. 

We cannot reconcile this method of attack to a pro- 
ceeding international in character, except on the theory 
that it is resorted to in pursuance of the time-wcrn 
maneuver of asking for everything in order to obtain 
something; for, were Colombia to succeed in producing 
the conviction that all the territory of the vState of Costa 
Rica ought to be adjudicated to her by virtue of old 
colonial rights, the Arbitrator could not, in determining a 
conflict of boundaries annul or almost annul the existence 
of a State which has been formed by the sovereignty of 
an emancipated people, which has been recognized in the 
integrity of its territory by the other vState, and which 
voluntarily, in its own personality, has agreed with that 
other State upon an arbitration which is to the tracing 
of a divisionary line between their respective territories. 

It was fully proved in the arbitral proceeding that from 
the primitive Veragua were formed three distinct prov- 
inces : the Province of Veragua (the only one that retained 
that name), constituted as such in 1560. with its governor 
and captain-general and having for its domain the terri- 
tory of the Dukedom of Veragua; the Province of Costa 
Rica, which began by embracing the whole of Royal 
Veragua, formed by virtue of the commission granted by 
Philip II to Cavallon. in 1561, and instituted as such prov- 
ince with its governor, captain-general, in 1565, and defini- 
tively organized by means of the Government of Artieda, 
in 1 573-1 574, upon the segregation of the territory situ- 
ated to the north of the Desaguadero or San Juan River, 
and the Province of Teguzgalpa which was created, in 1576, 



175 

out of the segregated territory that was called later the 

Mosquito Coast. 

It has been demonstrated that the Province of Costa 
Rica and that of Veragua existed as distinct provinces, 
with their respective territories and with different gov- 
ernors, from the time of their definitive constitution until 
the termination of the colonial period; and, furthermore, 
that each depended upon a different superior government- 
the Province of Costa Rica upon the Viceroyalty of Mexico 
and Captaincy-General and Audiencia of Guatemala and 
the Province of Veragua upon the Viceroyalties of Peru 
and New Granada and Audiencias of Panama and Santa Fe. 

The Recopilacion de Indias, far from suppressing the 
Province of Costa Rica, as Colombia pretends, confirmed 
its existence and mentioned it expressly as a distinct prov- 
ince from that of Veragua. The Province of Veragua, 
which the Recopilacion declares is embraced in the Govern- 
ment of Tierra Firme, was the one that sprang from the 
dukedom ; whereas, that of Costa Rica continued depend- 
ent upon the Audiencia of Guatemala, as it is also expressly 
provided in that code. 

Colombia contradicts her own argument of the legal 
non-existence of the Province of Costa Rica, when she 
alleges that the Royal order of San lyorenzo, of November 
20, 1803, segregated from the Superior Government of 
Guatemala the Atlantic part of Costa Rica as embraced 
in the Mosquito Coast, in order to add it to the Vice- 
royalty of Santa Fe; for this is equivalent to recognizing 
that Costa Rica legally existed without belonging to the 
Viceroyalty of Santa Fe, and that only that portion passed 
into dependency upon it, the rest remaining under the 
urisdiction of Guatemala. 



176 

It has been proved that the Royal order of 1803 did 
not refer to Costa Rica, since the latter did not form a part 
of the Mosquito Coast; that the order had only a military 
and transitory character; that it could not change the laws 
of territorial divison, and that it was inefficacious, con- 
tradicted and abrogated. 

The Spanish Province of Costa Rica, emancipated in 
1 82 1, brought to the Federal Republic of Central America 
(which it formed with the other provinces of the Old King- 
dom of Guatemala) the very same territory that it had, 
in fact and in law, as such Spanish province, and with that 
same territory belonging to the vState of Costa Rica, the 
Republic of Central America was recognized by the Colom- 
bian Government in the Treaty of 1825. 

4. Question of Delimitation. 

(a) Costa Ricas Evidence. 

The Republic of Costa Rica, as appears in Art. 2 of the 
Convention of January 20, 1886, has claimed in the arbi- 
tration as the line dividing her territory from that of 
Colombia: on the Atlantic side, the line indicated by the 
Island of Escudo de Veragua and the Chiriqui (Calobe- 
bora) River, inclusive; and on the Pacific side, the Chiriqui 
Viejo River, inclusive, to the east of Punta Burica. That 
line is the one fixed by the fundamental law of the State of 
Costa Rica of January 21, 1825, and with which the Repub- 
lic of Central America was recognized by Colombia in 
the Treaty of May 15 of the same year. And that same 
line is the one which separated the Province of Costa Rica 
from that of Veragua under the colonial regime, being also 
the divisionary line of the viceroyalties and the bordering 
audiencias. 



177 

The legality of this delimitation is based upon Law i, 
title I, book V, of the Recopilacion de Indias (Doc. No. 
131); in that law, enacted by Carlos II when that code 
was published, it was ordered that the viceroys, audiencias, 
governors and alcaldes may ores should keep and respect the 
boundaries of their jurisdictions "as they may be fixed by 
the Laws of this book, the Titles of their offices, the Pro- 
visions of the Superior Government of the Provinces or 
by use and custom legitimately introduced." 

The Republic of Costa Rica has fully proved in the 
litigation that from the demarcation of the province of 
that name, made in Artieda's capitiilacion of 1573, and his 
title of governor, granted in 1574, the boundaries of that 
province were the line of the Island of the Kscudo de 
Veragua and that of the Chiriqui (Calobebora) River, on 
the Atlantic side, and the Chiriqui Vie jo River (or rather, 
the Valleys of the Chiriqui, inclusive), on the Pacific side, 
these boundaries being the same that existed at the time 
of the publication of the Recopilacion de Indias, as shown 
by the acts of sovereignty exercised by the monarchs, the 
titles of the offices of the governors, the provisions of the 
superior government of the provinces, and the rights based 
on custom. 

The laws of the Recopilacion did not establish any 
different boundaries; and in respecting all the Royal 
cedulas which were not in contradiction therewith, the 
Royal cedulas demarcatory of boundaries remained in 
force without denying efficacy to the capitulaciones, the 
validity of which was recognized in so far as they were not 
in contradiction with the laws of the Recopilacion, those 
capitulaciones being considered, taken together, as a sys- 
tem governing discovery, settlement, pacification and 
government of the territories of the Indies. 



178 

As a result of the creation of the Viceroyalty of New 
Granada, and the incorporation of the Audiencia of 
Panama in the Audiencia of Santa Fe, the proof of the 
boundaries of the Province of Costa Rica is strengthened 
with the descriptions of the boundaries of that viceroyalty 
and of the audiencia that reached as far as that province, 
harmonizing with all the antecedents from the demarca- 
tion assigned to Artieda. 

This is shown from the "Description of the Kingdom 
of Tierra Firme," by the Comandantc general of Panama, 
Don Antonio Guill, in 1760; from the "Description of the 
Viceroyalty of Santa Fe." by its Viceroy, the Marquis de 
la Vega de Armijo, in 1772; from the "Report" by the 
Governor of Veragua, Don Felix Francisco Bejarano, 
in 1775; from the "Descriptions of the Viceroyalty of 
vSanta Fe, of Tierra Frme and of Veragua," in the most 
interesting work relating to southern America, by the mis- 
sionary, Sobreviela, in 1796, and by the "Official Com- 
munication" of the Governor of the Islands of San Andres, 
Don Tomas O'Neille, in 1802. 

The boundaries of the Province of Costa Rica continued 
unchanged in the last years of the Spanish sovereignty, 
for it has been shown by official documents that that prov- 
ince continued to embrace the territory from sea to sea, 
including the Matina Coast and the region of Talamanca, 
and that the Royal order of 1803 produced no change 
whatever in the traditional demarcation. 

Colombia recognized Costa Rica to be in possession 
of boundaries, the extreme points of which were the Island 
of the Escudo de Veragua and the mouth of the Chiriqui 
Viejo River, by the uii possidetis of the Treaty of 1825, 
and by the fact that, at the moment of the emancipation, 



179 

she immediately set up against this uti possidetis de facto 
the uti possidetis de jure, as though Costa Rica possessed 
such hmits without authority of law. It has been demon- 
strated that Costa Rica has in her favor, not only the uti 
possidetis dc facto, but the uti possidetis de jure, based upon 
the Recopilacion de Indias and the provisions which the 
latter respected or confirmed, or Avhich were issued in 
accordance therewith. 



(b) Colombia s Evidence. 

The abundant proof submitted by the Republic of Costa 
Rica as to her boundaries presents a strong contrast to the 
almost complete lack of evidence on the part of Colombia ; 
because, as we have said, she does not occupy herself with 
the question properly of boundaries, but with the ter- 
ritoriality. 

As appears in Art. 2 of the Convention of 1886, the 
Republic of Colombia has claimed in the arbitration, as 
her territorial limit: on the Atlantic side, as far as Cape 
Gracias a Dios, inclusive; and on the Pacific side, to the^ 
mouth of the Golfito River in Dulce Gulf. 

To claim from Dulce Gulf on the Pacific to Cape Gracias 
a Dios on the Atlantic, is equivalent to asking for all the 
territory of the Republic of Costa Rica and the eastern 
part of the Republic of Nicaragua as far as her boundary 
with Honduras. It is true that Colombia has left out the 
rights of third parties, and therefore of Nicaragua, stop- 
ping at the Desaguadero, or San Jaun River, the boundary 
between Nicaragua and Costa Rica. But in her eager- 
1607 — 14 



180 

ncss to justify her right as far as Cape Gracias a Dios 
or the Desaguadero, she has failed toprove her boundaries 
with Costa Rica, by creating herself mistress of the whole 
of primitive Veragua. 

When Colombia invokes the Royal order of vSan Lorenzo 
of 1803, to maintain her point that the Atlantic portion 
of Costa Rica had been incorporated to the Viceroyalty 
of Santa Fe — whereby she recognized that the portion on 
the Pacific side continued separated from that viceroyalty 
— it would seem that she was under obligation to fix the 
divisionary line between one portion and the other, but 
she never has done so, forgetting doubtless, that this 
Royal order did not establish such divisionary line, 
because not demarcatory of boundaries. 

So that Colombia has been left in this arbitral proceed- 
ing in the same situation as would be the owner of a piece 
of property who, in litigating with an adjoining owner, 
refused to prove the divisionary line between two proper- 
ties, on the ground that botli belonged to him; and the 
Arbitrator will be found in the situation in which the 
judge would be left, who, holding the ownerships to be 
distinct, and unable to recast them into a single one, had 
to mark out the properties in face of the fact that one of 
the holders had proved his divisionary line, whilst the 
other had not. 

A judge placed in such a position might perhaps be 
perplexed to decide a question of boundaries, properly 
speaking, through fear of being undul}- inclined on the 
side of the one who presented the proof. But that fear 
cannot exist in the present case, for two reasons: (i) be- 
cause Colombia had the opportunity of discussing 
the evidence of Costa Rica under very advantageous 



181 

conditions and did it to the utmost; and (2) because 
Colombia, although she may not have made direct 
proof of her divisionary line, offered indirectly a most 
valuable proof in the very title which she alleges as the 
basis of her rights and which may be used to take 
bearings from in order to decide with more assurance: 
we refer to the proof of. the limits of the Dukedom of 
Veragua. 

(c) Special Consideration oj the Boundaries of the Duke- 
dom of Veragua. 

Those boundaries are established by the Royal cedula 
of Carlos V of March 2, 1537, which is cited by Law 9, 
title I, book V, of the Recopilacion de Indias as a precedent 
for its text, in order to indicate, in our opinion, the origin 
of the Province of Veragua. 

Colombia maintains that when that law declared that 
the whole Province of Veragua should belong to the 
Government of Tierra Firme, it referred to the primitive 
Veragua, in which Costa Rica was embraced. Costa Rica 
affirms that the law referred to the Province of Veragua 
as it was constituted at the time of the publication of the 
Recopilacion de Indias, in 1680, and maintains that that 
province is the Dukedom of Veragua. And having proved 
that Panama cannot claim any other province of Veragua 
than the one arising out of the dukedom, she must resign 
herself to defending, as boundaries of this province, those 
which Colombia has recognized as limits of the dukedom 
by invoking the Royal cedula of 1537. 

According to that Royal cedula, the divisionary line 
between Panama and Costa Rica would be the straight 



1S2 

line from the west side of the square of 25 leagues, opposed 
to that which might be traced upon the meridian of the 
Belen River (inclusive), embraced between the parallels 
of the extremes and at a distance of 25 leagues. 

Thi? meridian corresponding to the mouth of the Belen 
River, being that of 80° 51' west of Greenwich, and the 
mouth being on the parallel of 8° 54', that divisionary line, 
at the distance of 23 leagues, would be indicated by the 
meridian of 82° 6', starting from the same parallel in 
the southern direction, and counting by 20 leagues to 
the degree. If the league is counted at the rate of 260 
to the degree, that divisionary line would recede toward 
Panama, the leagues being smaller. If the league is 
counted at the rate of 172 to the degree, the divisionary 
line would advance upon Costa Rica, the leagues l^eing 
longer, in which case (and the most favorable one for 
Panama) the dukedom would not extend beyond the 
meridian of 82° 15' 42" west of Greenwich, starting from 
the same parallel of 8' 54"^ 

Costa Rica, in designating the position of the mouth 
of the Belen River has made use of the most recent and 
exact maps of the English Admiralty Office, officially 
adopted by the Government of Panama, as may be seen 
even in the "Map of the Republic of Panama, prepared 
by Don Ramon M. Valdes and Don Andres Villarreal for 

'This point is resolved by an unquestionable document fur- 
nished by Panama itself. We refer to the " Mapa de la Rcpub- 
lica dc Panama" published in 19 10 by Don Ramon M. Valdes. 
On this map are very clearly traced the limits of the ancient 
Dukedom of Vera^iia and the divisional line with Costa Rica is 
indicated by the meridian 81° 58' 03" west of Greenwich. — Edi- 
tor's NoTii, 



183 

the text of the Geography adopted by the Govertiment 
of Panama," and pubUshed after the Award of M. Loubet, 
and in which that point is fixed at 80° 50' 40'' from 
Greenwich. 

Against the rational geographic proof of Costa Rica on 
this point, Colombia alleged that this should not be the 
position of the Belen River because a settlement of that 
name appears much further to the west in a map drawn by 
Diego Ribero in 1529; but even this argument becomes 
futile if the map of Diego Ribero, cited by Colombia, is 
examined without prejudice and as it was found in the 
library of the Grand Duke of Weimar. Ribera did not 
trace the Belen River, and in his map this name is applied 
to a place or vast area of water, which may well be esti- 
mated at 25 leagues to the east of Zorobaro, if there is 
taken into account the defective and diminutive scale of 
the Carta Universal (Universal Chart). ^ 

And even though no map were in existence, that distance 
of 25 leagues from the Bay of Zorobaro, which results 
from the account of the voyage of Columbus, and which 
the Council of the Indies must have taken into account 
in laying out the dukedom, would always be a very 
important factor. 

It is not our purpose to enter into a technical discussion 
as to whether the Spanish leagues of the XVIth century 
were of 26^ to the degree, as Jorge Juan believed, or 17^, 
as was maintained by the illustrious General of the 



^The learned comrnsntary of J. G. Kohl upon the Carta 
Universal of Diego Ribero shows the error of Colombia. Vide: 
"The Two Oldest Maps of America, etc.," by J. G. Kohl, 
Weimar, i860. 



184 

Armada, Don Pelayo Alcala Galiano, in his "Considerations 
Concerning Santa Cruz dc Mar Pequena," of 1879, based 
among other data, on the fact that the league of Burgos 
was the one adopted in the Conferences of Badajoz con- 
cerning the demarcation of the Spanish and Portuguese 
Dominions in 1524, as pointed out by Humboldt. It is 
enough for us to repeat that even accepting" the league 
of 17^ to the degree, the divisionary line of the dukedom 
would not penetrate into Costa Rica further than 82° 

15' 42". 

Comparing now the divisionary line asked for by Costa 
Rica in the arbitration with that of the dukedom, the 
result is : that on the north side it goes beyond that of the 
dukedom, and reaches that of the Bscudo de Veragua and 
of the Chiriqui or Calobebora River (meridian 81° 34' of 
longitude west of Greenwich) ; whilst on the south side, it 
does not reach the line of the dukedom, but remains at 
the mouth of the Chiriqui Viejo (meridian 82° 44'). The 
difference between the advance and the backward move- 
ment is divided equally by the meridian of 82° 9', which 
only differs by three minutes to the west from that corre- 
sponding to the line of the dukedom, counting the leagues 
at the rate of 20 to the degree. That is to say, that the 
advance is compensated by the retrogression. 

Whatever may be the divisionary meridian of the 
dukedom, Costa Rica enters into the Bay of Almirante 
or Lagoon of Chiriqui : on its western side, if the leagues 
are counted at the rate of 17^ to the degree; at its center, 
if at the rate of 20; and on its eastern side, if at the rate 
of 26^. In any event, there would always belong to 
Costa Rica all of that bay, with its coast and the Valiente 
Peninsula, under the mathematical demarcation of the 
(hikedom, bv being on the north of the square ^vhich 



185 

encloses the parallel of 8° 54' common to all the meridians 
determined by different lengths of leagues. 

Colombia, by presenting as a justifying title for her 
rights the Royal cedula of Carlos V, of 1537, which estab- 
lished the demarcation of the dukedom, proves her con- 
formity with the boundaries of the latter, which are 
mathematical and refer concretely to geographical points 
and distances, and therefore offer the assurance of not 
going astray in the cognizance of the localities and the 
estimation of the facts that are connected therewith. 

Costa Rica has demonstrated that this Dukedom of 
Veragua was converted into the Province of Veragua, and 
even when for this reason it would seem that she ought to 
have claimed as the divisionary line that of the dukedom, 
she did not do so, but confined herself strictly to the legal 
and historical reality that, from the time of Artieda (1573) 
to the independence (1821), was the line she has asked 
for, that reality having been the one recognized by the 
Recopilacion de Indias and the principle of the colonial 
uti possidetis. 

By accepting the straight line of the dukedom, Costa 
Rica would lose, on the north, the territory in which 
Artieda founded the city bearing his name and almost 
the whole of the Valleys of Guaymi, of which he took 
possession, as governor of the province, with perfect right 
recognized by the King. In exchange, Costa Rica would 
gain, on the south, the territory embraced between the 
Chiriqui Viejo River and the line of the dukedom, enlarg- 
ing herself by the Valleys of Chiriqui, to which she also 
had a right by virtue of the Royal cedula od 1573. 

Costa Rica could aspire to gain without losing, by claim- 
ing all the Valleys of Chiriqui under that Royal cedula, 
but she has not gone beyond the Chiriqui Viejo River, 



ISO 



to follow the historic reality, for she considers that the 
Governors of Costa Rica abandoned the valleys on the 
other side of the river to the intrusions of the Province 
of Veragua. 

(5) FiMAL Deductions. 

The following deductions are drawn from all that has 
been stated, concerning the general questions in which 
the case is synthetized: 

1 . That both of the Parties litigant are agreed in accept- 
ing as legal bases for the determination of this case the 
Recopilacidn dc Indias and the principle of the colonial 
uii possidetis. 

2. That Colombia has swallowed up the question of 
boundaries in that of territoriality, denying even the legal 
existence of the Province of Costa Rica, which was 
definitively constituted in 1573, and with the same territory 
that it kept when it was recognized by the Recopilacidn 
(1680), and when it was emancipated from vSpain (1821). 

3. That Costa Rica has fully proved that the bound- 
aries which separated her from the old Province of Veragua 
when she was emancipated, were the same which she 
possessed when her domain was marked out by the Royal 
cedula of 1573 and which were confirmed by the Recopi- 
lacidn. 

4. That Colombia, by claiming the w^hole of the 
territory of Costa Rica, has not undertaken to prove 
the boundaries of the Provinre of Veragua with that of 
Costa Rica, but by invoking as the title of her right the 
Royal cedula of March 2, 1537, which established the 
boundaries of the Dukedom of Veragua, she recognizes 
the boundaries of that dukedom, which is the Province 
of Veragua. 



187 

5- That the whole case between Colombia, or Panama, 
and Costa Rica, reduces itself to the question whether 
there is to be fixed as the divisionary line that of the 
dukedom, as the said Royal cedula mathematically de- 
termines it, or the line claimed by Costa Rica, which is 
the one that she has held, in fact and law, from her admin- 
istrative constitution as a Spanish province until her 
political organization as a sovereign State. 



The undersigned counsel have the honor to submit the 
foregoing opinion in response to the questions proposed 
to them by the Government of the Republic of Costa Rica. 

Segismundo Moret y Prendergast. 
Vicente Santamaria de Paredes. 

Madrid, Attgitst ji, igii. 



INDEX. 

PAGE. 

INTRODUCTION 3 

I. THE ARBITRATION OF THE BOUNDARY 

QUESTION PENDING BETWEEN THE RE- 
PUBLICS OE COSTA RICA AND PANAMA. . . 3 

II. OBJECT AND PLAN OF THIS OPINION 7 

FIRST PART.— THE PROVINCES OF COSTA RICA 
AND VERAGUA WERE DEFINITIVELY ESTAB= 
LISHED AND BOUNDED BY THE CROWN IN 
THE XVIth CENTURY (1573) 11 

I. NECESSITY FOR STUDYING THE FORMATION 

OF THE PROVINCES OF VERAGUA AND 

COSTA RICA 13 

(i) The "Vbragua" Equivoque as the premise of 

the principal argument of colombia 13 

(2) The history of the formation of the Provinces 
OF Veragua and Costa Rica clears up the equi- 
voque AND CLEARLY DEMONSTRATES HOW THEY 
WERE RECOGNIZED AND DIFFERENTIATED IN THE 

XVlTH Century 15 

II. THE PRIMITIVE VERAGUA (1502 to 1537) 17 

(i) The Veragua of Christopher Columbus (1502) . . 17 

(2) The Veragua of Nicuesa (1508) 18 

(3) The Veragua Bordering on the Castilla del 

Oro of Pedrarias Davila (1513 TO 1527) 19 

(4) The Veragua of Felipe Gutierrez (1534) 20 

III. PROVINCE OF VERAGUA 23 

(i) Creation of the Dukedom of Veragua; Royal 

Cedulas of 1537 23 

(2) Limits of this Dukedom 24 

(3) Suppression of the Ducal Seignory (1556) 26 

(4) Organization of the Province of Veragua with 

A Governor Captain-General (1560) 27 

(189) 



:i90 

IV. PROVINCE OF COSTA RICA 29 

(i) RoYAi. Veragua; Province of Costa Rica; Gov- 
ernment OF Sanchez de Badajoz (1539) 29 

(2) Province of Cartago; Government of Diego 

Gutierrez (1540) 30 

(3) Province of Cartago, or New Cartago or Costa 

Rica, From the Birth of the Province of 
Veragua (1560) 32 

(a) Differentiation of the ttvo ]'enii^nus, after the sup- 

pression of the Ducal Sei^)iory 32 

(b) Ortiz de LUgueta {1559) 2>:-> 

(c) Juan de CavaUon {i 560) 35 

(d) Denial of the request of the Governor of Tierra Firmc, 

Figuerola {ij<^i) 40 

(e) Vazquez de Coronado {1J62) 42 

(f) Perafdn de Ribera (ij66) 44 

(4) The Province of Costa Rica definitively or- 

ganized; Government of Artieda (1573) 44 

(a) Royal Ceduka of Philip II, of December i, ij/j. . . 45 

(b) Formation of the Province of Teguzgalpa by its segre- 

gation from the Province of Costa Rica, prior to 

1573 4^^ 

(c) Boundaries ivith the Province of Veragua 49 

V. THE QUESTION OF BOUNDARIES SETTLED BY 

THE ROYAL CEDULA OF 1573 AND NOT BY 

THAT OF 1537 53 

(i) Importance, confirmation and vSubsistence of 

the Royal Cedula of 1573 53 

(2) Inefficacy and abrogation of the Royal cedula 

OF 1537 54 

PART SECOND.~THE RECOPILACION DE INDIAS 
RESPECTED AND CONFIRMED THE EXISTENCE 
AND DEMARCATION OF COSTA RICA 59 

I. THE RECOPILACION DE INDIAS AND ITS 

ABROGATIVE FORCE 62 



191 

(i) The Argument of Colombia 62 

(2) General consideration concerning the Recopi- 

LACION DE InDIAS AND HOW ITS LAWS RESPECT AND 
confirm THE EXISTENCE AND DEMARCATION OF 

CosTA Rica 63 

II. THE DEMARCATION OF THE AUDIENCIAS. . . 65 
(i) Importance of the Audiencias in the Govern- 
ment OF the Indies 65 

(2) History of the Audiencias of Panama and 

Guatemala 66 

(3) Comparison Between Laws 4 and 6, of Title 15, 

Book II, Which Treat of these Audiencias. . 70 

(4) Interpretation of Law 4; What Were Castilla 

del Oro, NatA and the Government of Ve- 
RAGUA, Which Were Included by That Law 
in the Audiencia of Panama 72 

(5) Interpretation of Law 6. The Omission of the 

name of Costa Rica of no importance in treat- 
ing OF THE Audiencia of Guatemala 74 

III. COSTA RICA WAS EXPRESvSLY RECOGNIZED 

BY THE RECOPILACION AS A PROVINCE OF 
THE AUDIENCIA OF GUATEMALA OF THE 

VICEROYALTY OF MEXICO 77 

(i) Law I, Title 2, Book V, of the Recopilacion; 

Its Importance 77 

(2) This law is a resultant of the history of Costa 
Rica, which always depended upon the Audi- 
encia OF Guatemala 79 

(a) From the Creation of that Audiencia to ijdj 79 

(b) From its Re-establishment {ij68) down to thePromid- 
galion of the Recopilacion {i860) 81 

IV. INTERPRETATION OF LAW 9, TITLE i, BOOK 

V, DECLARING THAT THE WHOLE OF THE 
PROVINCE OF VERAGUA IS UNDER THE 
GOVERNMENT OF TIERRA FIRME ... 83 



192 

(i) Tiin; Whole Province of Veragua Cannot be 

Referred to as Being the Veragua of 1537. . 83 
(2) Nor is the hypothesis admissible that Veragua 

IS A jMajor and Costa Rica a Minor Province . 86 
{3) Explanation of This IwWv, by Making it Refer to 

THE Province Emanating from the Dukedom . . 88 
(4) Case of Supposed Contradiction of This Law 

With Others 93 

V. VALIDITY OF THE ROYAL C^DULAS, WHICH 
ARE DEMARCATORY ACCORDING TO THE 
RECOPILACION 95 

( 1 ) Principles Established by the Recopilacion in 

Regard to the Validity of the Royal Cedulas 
Prior and Subsequent Thereto 95 

(2 ) Legality of Territorial Division and the Bound- 

aries of Districts 96 

(3) Special Consideration of the Capitulaciones . 98 

(a) Juridical Character of the Capitulaciones 98 

(b) The Capitulaciones in the Light of Booi^ /L of the 

Recopilacion km 

(0) Capitulaciones Originating the Provinces of ]'eragiia 

and Costa Rica 104 

(4) Unilateral Acts of the Crown in the Unques- 

tionable Exercise of vSovereignty. and Titles 

of the Governors. Final Deductions 106 

PART THIRD. COSTA RICA CONTINUED IN THE 
SAME LEGAL STATUS OF DIFFERENTIATION 
FROM VERAGUA FROAI THE RECOPILACION 
DOWN TO THE INDEPENDENCE 112 

1. FROM THE RECOPILACION (1680) TO 1803 1 15 

( 1 ) Creation of the Viceroyalty of Santa Fe and 

Vicissitudes of the Audiencia of Panama, 
Until its Suppression (1717 to 1751) 115 

(2) The Province of Veragua Passed into Depend- 

ence upon the Viceroyalty and Audiencia of 



193 

Santa Fe. Costa Rica Continued Dependent 
upon the audiencia of guatemala of the 

ViCEROYAIvTY OF MEXICO II 7 

(3) The Crown Continued to Appoint Governors 

AND Captains-General of the Province of 
Costa Rica 1 18 

(4) Boundaries of the Viceroyalty of vSanta Fe 

with Costa Rica as a Province of the Audi- 
ENCiA OP Guatemala and bordering thereon . . 119 

(a) Anlcccdents ng 

(b) Description of the Kingdom of Tierra Firme by the 

Coniandante General of Panama, Don Antonio 
Guill, in lydo 122 

(c) Description of the Viceroyalty of Santa Fe, by its 

Viceroy, the Marquis de la Vega de A rmijo, in 

^77- 123 

(d) Report of the Governor of Veragua, Don Felix Fran- 

cisco Bejarano, in 17 J 5 123 

(c) Description of the Viceroyalty of Santa Fe, of Tierra 
Firme and of Veragua, by the Missionary Sobre- 

viela, in lygd 124 

(f) Official Communication of the Governor of the Islands 

San Andres, in 1802; and Resume 125 

II. THE ROYAL ORDER OF NOVEMBER 20, 1803, 

REFERRING TO THE MOSQUITO COAST. ... 127 

( 1 ) Antecedents, Formation and Text of the Order . 127 

(2) That Order was not Applicable to Costa Rica, 

Because What was called the Mosquito 
Coast Ended Before that Province Began. . . 130 '• 

(3) Military and Transitory Character of that 

Royal Order 137 

(4) The Order Could Not Change the Laws of 

Territorial Division 138 

(5) The Inefficacy and Abrogation of This Royal 

Order 147 



194 

III. LAST YEARS OF SPAxNISH SOVEREIGNTY. . . . 152 
(i) First Period of the Constitutional Regime ix 

Spain 152 

(a) General Organic Provisions 152 

(b) Continuation of the dependency of Ike northern coast 

of Costa Rica upon the Government of that Province. . 154 

(c) Description of the Province of Costa Rica in the Pro- 

posal Made by its Deputy in the Cortes for the Cre- 
ation of a Bishopric 155 

(2) Absolute Government of Fernando VII 157 

(3) vSecond Constitutional Period 158 

IV. THE INDEPENDENCE AND THE "UTI POS- 

SIDETIS" 161 

(i) Independence of the Provinces of Guatemala 

• AND New Granada 161 

(2) The Principle of Colonial "Uti Possidetis". . . 162 

(3) Application of the Principle 164 

Resume and Conclusions 171 

(i) Resume and General Conclusions of this 

Opinion 171 

(2) Agreement Respecting the Legal Bases for the 

Determination of the Case 172 

(3) Question of Territoriality 1 73 

(4) Question of Delimitation 1 76 

(a) Costa Rica's Evidence 176 

(b) Colombia's Evidence 179 

(c) Special Consideration of the Boundaries of the Duke- 

dom of Veragua 181 

f.s) Final Deductions 186 



